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EX-2.1 - EX-2.1 - UNICA CORP | b82224exv2w1.htm |
EX-10.1 - EX-10.1 - UNICA CORP | b82224exv10w1.htm |
EX-99.1 - EX-99.1 - UNICA CORP | b82224exv99w1.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 13, 2010 (August 12, 2010)
UNICA CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware | 000-51461 | 04-3174345 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
170 Tracer Lane, Waltham, Massachusetts | 02451 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (781) 839-8000
(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)) |
TABLE OF CONTENTS
Table of Contents
Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On August 12, 2010, Unica Corporation (Unica) entered into a definitive Agreement and Plan of
Merger (the Merger Agreement) with International Business Machines Corporation (IBM) and Amaroo
Acquisition Corp. (AmarooSub), a wholly-owned subsidiary of IBM.
Pursuant to the terms of the Merger Agreement, and subject to the conditions thereof, AmarooSub
will merge with and into Unica, and Unica will become a wholly-owned subsidiary of IBM (the
Merger). If the Merger is completed, Unicas stockholders will be entitled to receive $21.00 in
cash for each share of Unica common stock owned by them as of the date of the Merger.
The consummation of the Merger is subject to certain conditions, including adoption of the Merger
Agreement by Unicas stockholders, the continuing accuracy of Unica and IBMs respective
representations and warranties, the expiration or termination of any waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, as well as any similar filings
that need to be made in foreign jurisdictions. The dates for closing the Merger and for the Unica
stockholders meeting to vote on adoption of the Merger Agreement have not yet been determined.
Unica has made representations and warranties related to its business and operations and has agreed
to specified covenants in the Merger Agreement, including covenants relating to the conduct of
Unicas business between the date of the Merger Agreement and the closing of the Merger,
restrictions on solicitation of proposals for alternative transactions, holding a meeting of
stockholders for the purposes of voting to adopt the Merger Agreement, governmental filings and
approvals, public disclosures and other matters.
The Merger Agreement contains certain termination rights of IBM and Unica and provides that, under
specified circumstances, upon the termination of the Merger Agreement, Unica will be required to pay
IBM a termination fee of $14.25 million.
Each outstanding stock option to acquire Unica common stock granted under Unicas 1993 stock option
plan and Unicas 2003 stock option plan will be cancelled in the
Merger, and the holder thereof will
be entitled to receive a cash payment from IBM equal to the product of the total number of shares
of Unica common stock that are subject to such option, and the excess, if any, of $21.00 per share
over the exercise price per share of the common stock subject to such option, less applicable tax
withholdings.
Holders of outstanding stock options to acquire Unica common stock granted under Unicas 2005 stock
incentive plan that are vested or vesting in connection with the transaction will be offered the
opportunity to have their options treated as described above for the options under Unicas 1993 and
2003 stock option plans. Each outstanding option under the 2005 stock incentive plan, vested or
unvested, whose holder chooses not to be cashed out (in the case of vested options), will be
converted into an option to acquire, on substantially the same terms and conditions as were
applicable to such option prior to the Merger, shares of common stock of IBM. The number of shares
of common stock of IBM underlying such option will be determined by multiplying the number of
shares of Unica common stock underlying such option by an exchange ratio, which is determined by
dividing the merger consideration by the average closing price of IBM stock on the 20 trading days
immediately prior to the closing of the Merger, with the result rounded down to the nearest share
of IBM stock. The exercise price per share of such option is determined by dividing the exercise
price of such option prior to the Merger by that same exchange ratio, with the result rounded up to
the nearest cent.
IBM will pay to each holder of Unica restricted stock units, following each applicable date after
the Merger on which any restricted stock unit held by such holder at the effective time of the
Merger would have vested, each such date a lapse date, pursuant to the terms of Unica stock plans
or the terms of any such restricted stock unit as in effect immediately prior to the Merger, a cash
payment equal to the product of
$21.00 per share and the number of such restricted stock units that, on any particular lapse date,
would have so vested, so long as such holder remains employed with IBM.
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In connection with the execution of the Merger Agreement, Messrs. Yuchun Lee, Peter Cousins,
John Hogan, Kevin Keane, Paul McNulty and David Sweet and Ms. Vivian Vitale, executive officers of
Unica, have entered into employment arrangements with IBM that become effective only upon
consummation of the Merger.
Stockholders Agreement
Under a Stockholders Agreement dated August 12, 2010, Unicas chairman and chief executive officer
and certain affiliated trusts, who collectively are the beneficial owners of approximately 21% of
the outstanding shares of Unica common stock as of August 12, 2010, have agreed to vote their Unica
shares in favor of adoption of the Merger Agreement and against any takeover proposal, as defined
in the Merger Agreement.
The foregoing descriptions of the Merger Agreement and the Stockholders Agreements do not purport
to be complete and are qualified in their entirety by reference to those agreements. A copy of the
Merger Agreement and the Stockholders Agreement are filed, respectively, as Exhibits 2.1 and 10.1
hereto and are incorporated herein by reference.
The Merger Agreement has been attached as an exhibit to provide investors with information
regarding its terms. It is not intended to provide any other factual information about IBM,
AmarooSub or Unica. The representations, warranties and covenants contained in the Merger Agreement
were made solely for the purposes of the Merger Agreement and the benefit of the parties to the
Merger Agreement and may be subject to limitations agreed upon by the contracting parties. Certain
of the representations and warranties have been made for the purposes of allocating contractual
risk between the parties to the agreement instead of establishing these matters as facts. Investors
are not third-party beneficiaries under the Merger Agreement. In addition, the representations and
warranties contained in the Merger Agreement (i) are qualified by information in a confidential
disclosure letter that the parties have exchanged, (ii) were made only as of the dates specified in
the Merger Agreement or the confidential disclosure letter, and (iii) in some cases are subject to
qualifications with respect to materiality, knowledge and/or other matters, including standards of
materiality applicable to the contracting parties that differ from those applicable to investors.
Moreover, information concerning the subject matter of the representations and warranties may
change after the date of the Merger Agreement, which subsequent information may or may not be fully
reflected in Unicas or IBMs public disclosures. Accordingly, investors should not rely on the
representations and warranties as characterizations of the actual state of facts or condition of
Unica or IBM or any of their respective subsidiaries or affiliates.
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
Any statements in this Current Report on Form 8-K about future expectations, plans and prospects
for Unica, including statements about the expected timetable for consummation of the proposed
transaction among IBM, AmarooSub and Unica, and any other statements about IBM, AmarooSub and
Unica, or about Unicas future expectations, beliefs, goals, plans or prospects, constitute
forward-looking statements within the meaning of Section 21E of the
Securities Exchange Act of 1934. Any statements that are not statements of historical fact
(including statements containing the words believes, plans, anticipates, expects,
estimates and similar expressions) should also be considered forward-looking statements. A number
of important factors could cause actual results or events to differ materially from those indicated
by such forward-looking statements, including the parties ability to consummate the transaction;
the conditions to the completion of the transaction, including the receipt of shareholder approval,
court approval or the regulatory approvals required for the transaction may not be obtained on the
terms expected or on the anticipated schedule; the parties ability to meet expectations regarding
the timing, completion and accounting and tax treatments of the transaction; the possibility that
the parties may be unable to achieve expected synergies and operating efficiencies in the
arrangement within the expected time-frames or at all and to successfully integrate Unicas
operations into those of IBM; such integration may be more difficult, time-consuming or costly than
expected; operating costs, customer loss and business disruption (including, without limitation,
difficulties in maintaining relationships with employees,
customers, clients or suppliers) may be greater than expected following the transaction; the
retention of certain key employees of Unica may be difficult; IBM and Unica are subject to intense
competition, and increased competition is expected in the future; fluctuations in foreign currencies
could result in transaction
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losses and increased expenses; the volatility of the international
marketplace; and the other factors described in reports filed with the Securities and Exchange Commission (the
SEC), including IBMs Annual Report on Form 10-K for the fiscal
year ended December 31, 2009, IBMs most recent quarterly
report, Unicas Annual Report on Form 10-K for the
fiscal year ended September 30, 2009, and Unicas most
recent quarterly report. IBM and Unica assume no obligation to update the
information in this Current Report on Form 8-K, except as otherwise required by law. Readers are
cautioned not to place undue reliance on these forward-looking statements that speak only as of the
date hereof.
IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE SEC
In connection with the proposed acquisition of Unica by IBM, Unica intends to file relevant
materials with the SEC, including Unicas proxy statement in preliminary and definitive form.
SHAREHOLDERS OF UNICA ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING
UNICAS DEFINITIVE PROXY STATEMENT, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION. Investors and security holders will be able to obtain the documents free of
charge at the SECs web site, http://www.sec.gov. Documents will also be available for free from
Unica by contacting Kori Doherty, ICR at 617-956-6730 or kdoherty@icrinc.com
IBM and its directors and executive officers, and Unica and its directors and executive officers,
may be deemed to be participants in the solicitation of proxies from the holders of Unica common
shares in respect of the proposed transaction. Information about the directors and executive
officers of IBM is set forth in the proxy statement for IBMs 2010 Annual Meeting of Stockholders,
which was filed with the SEC on March 8, 2010. Information about the directors and executive
officers of Unica is set forth in the proxy statement for Unicas 2010 Annual Meeting of
Shareholders, which was filed with the SEC on January 25, 2010. Investors may obtain additional
information regarding the interest of such participants by reading the definitive proxy statement
regarding the acquisition when it becomes available. As of
June 30, 2010, Unicas
directors and executive officers collectively beneficially owned
approximately 5,570,579 shares of
Unica common stock, which represented approximately 25.9% of the outstanding shares of Unica common
stock as of such date. In addition, Unica has entered into retention agreements with its executive
officers, which are described in a Current Report on Form 8-K filed by Unica with the SEC on
December 17, 2008, and certain of Unicas executive officers have entered into employment
arrangements with IBM, which will become effective as of the closing of the Merger. A more
complete description of these arrangements and the interests of Unicas directors and executive
officers with respect to the Merger will be available in the Proxy Statement.
Item 5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
In connection with the execution of the Merger Agreement, Unica has accelerated, contingent on the
closing of the Merger, the vesting of all of the stock options and restricted stock units granted
under Unicas 2005 Stock Incentive Plan in February 2010 to each non-employee director. As a
result, an option to purchase 5,000 shares of our common stock will become immediately exercisable
and an award of 5,000 restricted stock units will become fully vested upon the closing of the
Merger for each of Aron J. Ain, Gary E. Haroian, Carla Hendra, Louis Hernandez, Jr., James A.
Perakis and Robert P. Schechter.
Certain of Unicas executive officers, as well as other employees, are expected to enter into
agreements with Unica that will provide, contingent on the closing of the Merger, for the
cancellation of options granted to them under Unicas 2005 Stock Incentive Plan in exchange for a
cash payment equal to the product obtained by multiplying the number of shares subject to such
option by the difference between $21.00 and the exercise price of the common stock subject to such
option, less applicable withholding taxes. Unica expects to identify the executive offers that will enter into such agreements in the
Proxy Statement.
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In connection with the execution of the Merger Agreement, Unica has awarded a special transaction
bonus of $100,000 in cash to each of Jason P. Joseph and Kevin P. Shone that will be paid contingent
upon the closing of the Merger.
In connection with the execution of the Merger Agreement, each of Messrs. Yuchun Lee, Peter
Cousins, John Hogan, Kevin Keane, Paul McNulty, and David Sweet and Ms. Vivian Vitale have entered
into employment arrangements with IBM. These employment arrangements supersede and replace the
retention agreements to which they are currently a party and they will not be entitled to any of the
benefits provided under their existing retention agreements as a result of the Merger. A
description of the terms of the employment arrangements will be made available in the Proxy
Statement. In addition, Mr. Lee has entered into a new non-competition and non-solicitation
agreement that will supersede and replace the non-competition and non-solicitation arrangements
that he is currently bound by, contingent upon the closing of the Merger.
Item
8.01. Other Events.
On August 13, 2010, Unica issued a press release announcing entry into the Merger Agreement, a copy of which is attached as
Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01.Financial Statements and Exhibits.
(d) See the Exhibit Index attached to this Current Report on Form 8-K, which is incorporated
herein by reference.
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SIGNATURE
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.
UNICA CORPORATION |
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Date: August 13, 2010 | By: | /s/ Kevin P. Shone | ||
Kevin P. Shone | ||||
Senior Vice President and Chief Financial Officer |
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