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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 31, 1998
ARBOR SOFTWARE CORPORATION
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(EXACT NAME OF REGISTRATION AS SPECIFIED IN CHARTER)
DELAWARE 000-26934 77-0277772
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(STATE OR OTHER JURISDICTION OF (COMMISSION (IRS EMPLOYER
INCORPORATION FILE NUMBER) IDENTIFICATION NO.)
1344 CROSSMAN AVENUE, SUNNYVALE, CALIFORNIA 94089
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (408) 744-9500
NOT APPLICABLE
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS
On July 31, 1998, Arbor Software Corporation (the "Registrant")
entered into a registration rights agreement (the "Agreement") with certain
stockholders (the "Holders"). Under the terms of the Agreement, the Registrant,
at its own expense, is obligated to effect a registration statement on Form S-3
as soon as practicable and to use commercially reasonable efforts to have such
declared effective to (1) register all of the Holders' Common Stock for resale
and (2) facilitate the sale of up to 20%, or 16,855 shares, of the Holders'
Common Stock on the open market on or before December 16, 1998. A copy of the
Agreement is attached to this Form 8-K as Exhibit 4.1.
The foregoing description does not purport to be complete and is
qualified in its entirety by reference to the definitive Agreement filed as an
Exhibit herewith.
ITEM 7. EXHIBITS
(c) EXHIBITS:
<TABLE>
<CAPTION>
Exhibit
Number
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<S> <C>
4.1 Registration Rights Agreement, dated July 31, 1998, by
and among the Registrant and the persons listed on
Schedule A thereto.
</TABLE>
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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.
Arbor Software Corporation
(Registrant)
Date: August 10, 1998 By: /s/ STEPHEN V. IMBLER
-------------------------------------
Stephen V. Imbler
Senior Vice President and Chief
Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
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ARBOR SOFTWARE CORPORATION
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
- ------
<S> <C>
4.1 Registration Rights Agreement, dated July 31, 1998, by and among
the Registrant and the persons listed on Schedule A thereto.
</TABLE>
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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 31st day of
July, 1998, by and between Arbor Software Corporation, a Delaware corporation
(the "COMPANY"), and each of the persons listed on Schedule A hereto
(collectively, the "HOLDERS").
RECITALS
WHEREAS, the Company acquired all the outstanding shares of
capital stock of AppSource Corporation, a Florida corporation ("APPSOURCE") in
exchange for cash and shares of common stock (the "COMMON STOCK") of the Company
(the "MERGER");
WHEREAS, the parties hereto have determined that in light of the
Company's recent offering of 4-1/2% Convertible Subordinated Notes due 2005 and
in lieu of any registration rights (if any) of the Holders in connection with
such offering it is in the best interests of the parties hereto to grant certain
registration rights to the Holders as set forth herein; and
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights. The Company covenants and agrees as
follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "ACT" means the Securities Act of
1933, as amended.
(b) The term "1934 ACT" shall mean the Securities
Exchange Act of 1934, as amended.
(c) The term "LOCK-UP SHARES" for each Holder shall
mean 80% of the Registrable Securities held by such Holder on the date hereof.
(d) The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(e) The term "REGISTRABLE SECURITIES" means the
Common Stock of the Company issued to the Holders in the Merger, and any Common
Stock of the Company issued as a dividend or other distribution with respect to
such Common Stock.
(f) The term "RULE 144" shall mean Rule 144
promulgated under the Act, as amended, or any similar successor rule thereto
that may be promulgated by the SEC.
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(g) The term "SEC" shall mean the Securities and
Exchange Commission.
1.2 Registration.
(a) The Company shall use all commercially
reasonable efforts to effect as soon as practicable a registration statement on
Form S-3 and any related qualification or compliance with respect to all of the
Registrable Securities owned by Holders so as to permit or facilitate the sale
and distribution of up to 20% of Holder's Registrable Securities as are
specified by such Holder in writing upon execution hereof, together with all or
such portion of the Registrable Securities of any other Holders who have also
specified in writing.
(b) Notwithstanding the foregoing, if the Company
shall furnish to the Holders a certificate signed by the Chief Financial Officer
of the Company stating that in the good faith judgment of the Company, it would
be detrimental to the Company and its stockholders for such registration
statement to be filed, and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer filing the
registration statement referred to in Section 1.2(a) until such time as the
Company believes in its good faith judgment that such filing would no longer be
detrimental to the Company and its stockholders; provided, however, the Company
shall not be obligated to effect any registration pursuant to this Section 1 if
Form S-3 is not available for such offering by the Holders or if the Company has
already effected one registration statement on Form S-3 for the Holders.
1.3 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable Securities, the
Company shall:
(a) Prepare and file with the SEC, a registration
statement with respect to such Registrable Securities and use all commercially
reasonable efforts to cause such registration statement to become effective,
and, subject to the provisions below, use commercially reasonable efforts to,
keep such registration statement effective until December 16, 1998 or, if
earlier, until the distribution contemplated in the registration statement has
been completed. If at any time after a registration statement becomes effective,
the Company advises the Holders in writing that the registration statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any prospectus comprising a part of such registration
statement shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or the occurrence or existence of any pending corporate
development that, in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of the registration statement and the
related prospectus, the Company shall give notice to the Holders that the
availability of the registration statement is suspended and the Holders shall
suspend any further sale of Registrable Securities pursuant to the registration
statement until the Holders have been informed in writing that the registration
statement is available. The Company shall be entitled to exercise its right to
suspend the availability of the registration statement for a period exceeding
not more than sixty (60) days in
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any three (3) month period, not to exceed in the aggregate ninety (90) days in
any twelve (12) month period. When selling Registrable Securities, a Holder
shall follow the procedures set forth in Section 1.9 and may presume that no
suspension is in effect if a trade is made in the manner described in that
section.
(b) Subject to subsection 1.3(a), prepare and file
with the SEC such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to the Holders requesting registration
such numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as they
may reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use commercially reasonable efforts to register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Act.
1.4 Information from Holders. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable Securities of a Holder that such
Holder shall furnish to the Company the information requested on Appendix 1.4
hereto, which shall include such information regarding himself or herself, the
Registrable Securities held by him or her, and the intended method of
disposition of such securities, and such other information as shall be
reasonably requested by the Company and required to effect the registration of
the Registrable Securities.
1.5 Expenses of Registration. All expenses of the Holders,
except underwriting discounts (if any) or commissions, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company shall be
borne by the Company; provided, however, that the Company shall not be required
to pay any professional fees incurred by any Holders.
1.6 No Assignment of Registration Rights. The registration
rights provided hereunder are not assignable.
1.7 Indemnification. In the event any Registrable
Securities are included in a registration statement under this Section 1:
(a) Each Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, any other Holder
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selling securities in such registration statement and any controlling person of
any such Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, or the 1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto) arise out of or
are based upon any of the following statements, omissions or violations
(collectively, a "VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) any omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, or any rule or regulation
promulgated under the Act, or the 1934 Act or other federal or State law, in
each case to the extent that such Violation is contained in any written
information furnished by Holder for inclusion in such registration; and Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.7(a), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.7(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of Holder, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this subsection 1.7(a)
exceed the net proceeds from the offering received by Holder.
(b) Promptly after receipt by an indemnified party
under this Section 1.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.7,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding.
(c) If the indemnification provided for in this
Section 1.7 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged
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untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(d) The obligations of each Holder under this
Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in an
underwriting agreement (if any) entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
1.8 Termination of Registration Rights. The registration
rights provided in this Section 1 shall terminate with respect to a particular
Holder if the Registrable Securities owned by such Holder have been held for the
necessary holding period under Rule 144 and all shares of Registrable Securities
held by such Holder may be sold pursuant to Rule 144 in any three (3) month
period. Upon the termination of registration rights pursuant to this Section
1.8, the Company shall have the right to withdraw the registration statement, or
any portion thereof, covering the Registrable Securities.
1.9 Notice by Selling Holders. Each Holder who intends to
sell any or all of his shares of Registrable Securities pursuant to the
provisions of this Section 1 shall give advance written notice to Larry
Braverman, the Company's Vice President, Legal and General Counsel, of such
intention and shall be free to sell any or all of his shares of Registrable
Securities if such Holder has not received notice to the contrary within five
(5) business days of the receipt by Mr. Braverman of such written notice.
2. Market Stand Off. Each Holder irrevocably agrees that he or
she will not publicly announce any intention to and will not, without the prior
written consent of the Company (i) offer, pledge, sell, offer to sell, contract
to sell, sell any option or contract to purchase, purchase any option to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any of the Lock-Up Shares or any securities
convertible into, or exercisable or exchangeable for, the Lock-Up Shares, or
(ii) enter into any swap or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of the Lock-Up Shares or any
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock of the Company (whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery (A) of shares of Common Stock of
the Company or securities convertible into, or exercisable or exchangeable for,
Common Stock of the Company, (B) in cash or (C) otherwise), in each case,
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) or
otherwise controlled by such person on December 16, 1997 or thereafter acquired,
for a period beginning from the date hereof, and including December 16, 1998;
provided, however, that such person may, without the prior written consent of
the Company transfer Lock-Up Shares or such other securities of the
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Company to members of such person's immediate family or to trusts for the
benefit of members of such person's immediate family or in connection with bona
fide gifts; provided that any transferee agrees to the transfer restrictions
described above.
3. Miscellaneous.
3.1 General. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
3.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon facsimile (with confirmed receipt), or personal
delivery to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties.
3.6 Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
3.7 Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders
holding a majority of the Registrable Securities.
3.8 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.9 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
ARBOR SOFTWARE CORPORATION:
By: /s/ Stephen V. Imbler
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Stephen V. Imbler
Senior Vice President and Chief
Financial Officer
Address:
Arbor Software Corporation
1344 Crossman Avenue
Sunnyvale, CA 94809
HOLDERS:
/s/ James Dixon
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Signature
Address:
956 Stonecreek Court
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Longwood, FL 32779
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/s/ Daley Family Ltd., Richard Daley,
General Partner
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Signature
Address:
4751 Rosewood Dr.
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Orlando, FL 32806
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/s/ Chris Dziekan
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Signature
Address:
774 Spring Island Way
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Orlando, FL 32828
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/s/ Robert A. Boutilier
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Signature
Address:
7429 Betty St.
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Winter Park, FL 32792
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/s/ Marc D. Batchelor
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Signature
Address:
1894 Branchwater Trial
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Orlando, FL 32825
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/s/ Douglas A. Moran
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Signature
Address:
5055 Canoni Place
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Cocoa, FL 32927
-----------------------------------------
/s/ Todd A. Vanhoozier
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Signature
Address:
3355 Mission Lake Dr. #393
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Orlando, FL 32817
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/s/ Adrian J. Marshall
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Signature
Address:
13037 Mulberry Park Dr. #521
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Orlando, FL 32821
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SCHEDULE A
Marc D. Batchelor
Roger A. Boutilier
Daley Family Ltd.
James Dixon
Chris Dziekan
Adrian J. Marshall
Douglas A. Moran
Todd A. Vanhoozier
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APPENDIX 1.4
STOCKHOLDER INFORMATION:
All information furnished below by the undersigned for use in the Registration
Statement on Form S-3 is, and on the date such shares registered thereunder,
will be true, correct, and complete in all material respects, and does not, and
on the date on which the undersigned sells such shares, will not, contain any
untrue statement of a material fact or omit to state any material fact necessary
to make such information not misleading. By completing and returning this
information statement, the undersigned hereby consents to the use of his or her
name, address, and share ownership information in the Form S-3 of Arbor Software
Corporation.
A. Date.
Fill in Date: ______________________
B. Name. Print:
Print and sign name or
names exactly as name or ______________________
names appear on share
certificate. If ______________________
certificate is held in
more than one name, all
must sign.
Sign:
______________________
______________________
C. Address.
Fill in your address: ______________________
______________________
______________________
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D. Stock Owned.
Fill in number of shares Of Record Beneficially
of Common Stock owned of
record and benefically. __________ ______________________
E. Aggregate Number of Shares of Common Stock to be sold:
_____________ Shares
F. Status.
The undersigned is an individual ( ), partnership ( ), corporation ( ), or
other, as more fully described below ( ). The undersigned is not acting in
a fiduciary capacity or as a nominee in selling shares in the public
offering, except as indicated below.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
