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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): September 23, 1997
NETLIVE COMMUNICATIONS, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 0-28728 13-384-8652
(State or other jurisdiction (Commission (IRS Employer
of incorporation File No.) Identification
No.)
584 Broadway, New York, New York 10012
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (212) 343-7082
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On September 23, 1997, NetLive Communications, Inc. (the "Company"),
May Davis Group, Inc. ("May Davis"), Owen May, Dibo Attar, Dennis Sal and
seven investment funds as to which Mr. Attar acts as advisors (the "Funds",
and together with May Davis and Messrs. May, Attar, and Sal, collectively, the
"Subscribing Parties") entered into an Amendment to Settlement and Voting
Agreement (the "Amendment") to amend the Settlement and Voting Agreement,
dated as of June 12, 1997, by and among such parties (the "Voting Agreement").
Pursuant to the Amendment, the Company agreed to immediately remove
transfer restrictions imposed by the Voting Agreement on 170,000 shares of the
outstanding shares of the Company's common stock ("Shares") owned by the
Subscribing Parties. The Subscribing Parties represented in the Voting
Agreement that they owned 315,000 Shares. The Subscribing Parties continue to
be restricted from transferring the remaining Shares owned by them until after
the Company's annual meeting of stockholders ("Annual Meeting"), provided the
Company holds its Annual Meeting prior to October 13, 1997, unless such Annual
Meeting is delayed by forces beyond the Company's reasonable control. The
Subscribing Parties acknowledged that the Company had complied with its
obligations under the Voting Agreement to make efforts to hold its Annual
Meeting on or prior to September 15, 1997.
Pursuant to the Amendment, the parties agreed that, of the 58,600
Shares received or to be received by Ganaterra Corporation N.V. pursuant to a
purchase from Robert Friedman, 29,500 Shares have not and will not become
subject to the Voting Agreement, as amended. The remaining 29,100 Shares
acquired, or to be acquired, by Ganaterra have or will become subject to the
Voting Agreement, as amended. The parties further agreed that all
warrants owned by the Subscribing Parties are not subject to the Voting
Agreement, as amended. The parties agreed that the Shares in the May Davis
trading account shall be subject to the Voting Agreement, provided that
only 11,400 of such Shares shall be subject to the transfer restrictions
in such Voting Agreement.
On September 23, 1997, the Company and May Davis Group, Inc. entered
into an Amendment to Underwriting Agreement to amend the Underwriting
Agreement, dated August 12, 1997, between such parties (the "Underwriting
Agreement"). Pursuant to the Amendment and the Amendment to Underwriting
Agreement, May Davis Group, Inc. ("May Davis") agreed to reduce the expiration
of the period during which the Company must obtain May Davis's consent prior
to the Company's issuance of securities pursuant to a Regulation S offering,
common stock or securities convertible to common stock from August 12, 1998 to
January 1, 1998.
On September 23, 1997, the Company also entered into a letter
agreement with Gary Rogers (the "Letter Agreement"), whereby Mr. Rogers agreed
to be bound by the provisions of the Voting Agreement, as modified by the
Amendment.
The foregoing summaries of certain provisions of the Amendment, the
Amendment to Underwriting Agreement, and the Letter Agreement are qualified in
their entirety by reference to the full text thereof, copies of which are
attached as exhibits hereto, and which are hereby
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incorporated by reference herein. The foregoing summaries of certain
provisions of the Voting Agreement are qualified in their entirety by
reference to the full text thereof, a copy of which has been previously filed
by the Company as Exhibit 10.9.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements
None
(b) Pro Forma Financial Information
None
(c) Exhibits
10.12 Amendment to Settlement and Voting Agreement, dated
as of September 23, 1997 by and among the Company,
May Davis Group, Inc. et al.
10.13 Amendment to Underwriting Agreement, dated as of
September 23, 1997, by and between the Company and
May Davis Group, Inc.
10.14 Letter Agreement, dated as of September 23, 1997,
by and between the Company and Gary Rogers
The other Items set forth in Form 8-K are not applicable and have
been omitted.
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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.
NETLIVE COMMUNICATIONS, INC.
Dated: October 7, 1997 By: /s/ Michael Kharitonov
----------------------------
Signature
Name: Michael Kharitonov
Title: Chief Executive Officer and
President
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EXHIBIT INDEX
TO FORM 8-K
Exhibit Description Page No.
- ------- ----------- --------
10.12 Amendment to Settlement and Voting Agreement, 6
dated as of September 23, 1997 by and among the
Company, May Davis Group, Inc. et al.
10.13 Amendment to Underwriting Agreement, dated as of 13
September 23, 1997, by and between the Company and
May Davis Group, Inc.
10.14 Letter Agreement, dated as of September 23, 1997, 16
by and between the Company and Gary Rogers
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AMENDMENT TO
SETTLEMENT AND VOTING AGREEMENT
Amendment to Settlement and Voting Agreement, dated as of the 23rd
day of September, 1997 (the "Amendment"), to the Settlement and Voting
Agreement, dated as of June 12, 1997 (the "Settlement Agreement"), by and
among the parties executing this Amendment.
W I T N E S S E T H :
WHEREAS, the parties hereto hereby agree that it would be in their
mutual best interest to amend the Settlement Agreement in the manner set forth
herein;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms which are not defined herein
shall have the respective meanings set forth in the Settlement Agreement.
2. Modifications. The Settlement Agreement is hereby amended as
follows:
(a) Sections 2.4 and 3.6 shall be deleted in their entirety
and the following provisions substituted in lieu thereof:
2.4. Transfer Restrictions. The Subscribing Parties
represent and warrant that, exclusive of any
securities in the May Davis trading account above
11,400 outstanding shares of Common Stock, there
are 315,000 outstanding shares of Common Stock that
are Subscribing Party Voting Securities as of the
date hereof. The Company hereby agrees that the
Subscribing Parties may sell up to 170,000 shares
of such Subscribing Party Voting Securities at any
time following the date of this Amendment, subject
to compliance with applicable securities laws, free
of any restrictions imposed by the Company and that
the Company shall use its best efforts to cause its
counsel to deliver any and all opinions reasonably
requested by the Company's transfer agent in
connection with such transfers, promptly upon
request. The Company hereby confirms that, in the
event that a proposed sale is to be effected under
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Rule 144 promulgated under the Securities Act of
1933, as amended, the form of seller's
representation letter attached hereto as Exhibit A,
when and if duly completed by the applicable
Subscribing Party, will be acceptable. The
Subscribing Parties agree that the remaining shares
of Common Stock will continue to constitute
Subscribing Party Voting Securities and that the
Subscribing Parties shall not sell or otherwise
transfer any of such shares (or take any other
action that would cause such Common Stock to cease
to be Subscribing Party Voting Securities) until
after the 1997 Annual Meeting (including any
adjournments of such Meeting). Any proposed
transfer of the remaining shares of Subscribing
Party Voting Securities (namely, 145,000 plus any
shares of Common Stock hereafter acquired pursuant
to Section 2.5 or otherwise) by a Subscribing Party
shall be void unless in accordance with the
provisions of this Section 2.4.
3.6. Withdrawal of Demand for Shareholder List. May
Davis hereby confirms that it has withdrawn its
demand, dated February 27, 1997, pursuant to
Section 220 of the Delaware General Corporation
Law, for a list of the Company's shareholders.
(b) The following provisions shall be added to the
Settlement Agreement as Sections 2.5, 3.10 and 3.11, respectively:
2.5. Additional Shares. The Subscribing Parties
covenant and agree that they have completed or will
complete by October 1, 1997 a transaction by which
58,600 outstanding shares of Common Stock are sold
by Robert Friedman ("Friedman") to Ganaterra
Corporation N.V. ("Ganaterra"). The Company agrees
that 29,500 of such shares received by Ganaterra
have not become or shall not upon completion become
or be deemed Subscribing Party Voting Securities
and may be sold or transferred freely by Ganaterra,
subject to applicable securities laws or other
restrictions not contained in this Agreement. The
Subscribing Parties agree that the remaining 29,100
shares received by Ganaterra from Friedman have
become or shall become upon completion Subscribing
Party Voting Securities and such shares do or shall
constitute additional shares subject to this
Agreement including, but not limited to, the
restrictions set forth in Section 2.4. The Company
agrees to use its best efforts to cause its counsel
to deliver any and all opinions reasonably
requested by the Company's transfer agent, promptly
upon request, in connection with the sale of 58,600
to Ganaterra and any subsequent transfer by
Ganaterra of such shares pursuant to this Section
2.5.
3.10. 1997 Annual Meeting Acknowledgment. The
Subscribing Parties hereby acknowledge that (i) the
Company made reasonable efforts through September
15, 1997 to hold the 1997 Annual Meeting by that
date; (ii) the
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delay of the 1997 Annual Meeting beyond September
15, 1997 was caused by forces beyond the Company's
reasonable control; (iii) the Company has not
violated Section 3.9 of the Agreement as in effect
prior to the Amendment; and (iv) the transfer
restrictions contained in Section 2.4, as amended,
are in full force and effect.
3.11 Exchange Act Compliance - The Company
represents and warrants that it has filed to date
the reports required to be filed by it under the
Securities Exchange Act of 1934 to the extent
required to enable holders of Shares to sell Shares
within the limitation of the exemptions provided by
Rule 144 under the Securities Act of 1933, as
amended.
(c) Section 6(b) of the Agreement shall be amended by
inserting the following sentence at the end of such Section:
All securities held in the trading account of May
Davis shall be included in the definition of
Subscribing Party Voting Securities; provided,
however, that none of such securities other than
11,400 outstanding shares of Common Stock shall be
subject to Section 2.4. All warrants held by the
Subscribing Parties shall be expressly excluded
from the definition of Subscribing Party Voting
Securities.
(d) Section 3.9 of the Agreement shall be amended by
changing the phrase "September 15, 1997" to "October 13,
1997" in each instance in which it appears
(e) May Davis and the Company hereby agree that Sections
5(n), 5(p) and 5(v) of the Underwriting Agreement shall be
deleted in their entirety and the following provisions
substituted in lieu thereof (all capitalized terms used
below shall have the respective meanings set forth in the
Underwriting Agreement):
5(n) From the Effective Date until January 1, 1998,
not issue any other shares of Common Stock or
securities convertible into Common Stock without
the prior written consent of the Underwriter, which
consent shall not be unreasonably withheld or
delayed. In the event that the Company requests the
Underwriter's consent for any of the above, the
Underwriter shall have five days from the date of
such request to indicate its approval or
disapproval. If the Underwriter does not respond
within such five day period, its consent will be
assumed. Notwithstanding the foregoing, the Company
may issue securities (A) upon (i) the exercise of
any warrants or options outstanding on the date
hereof or contemplated in the Prospectus pursuant
to the terms thereof; (ii) pursuant to the exercise
of the Over-allotment Option; and (iii) the
exercise of the Underwriter's Warrant, and (B)
pursuant to any of the Stock Option Plans described
in the Prospectus or plans subsequently
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adopted.
5(p) For a period of two years from the Effective
Date, the Company will not file a Form S-8
registration statement without the consent of the
Underwriter, which consent will not be unreasonably
withheld; provided, however, that May Davis hereby
consents to the filing by the Company, on or after
May 14, 1998, of one or more Form S-8 registration
statements and any amendments thereto which
register the offer and sale of not more than
1,360,000 shares of Common Stock issuable upon the
exercise of stock options or pursuant to the
NetLive Performance Share Program Plan and/or any
employee benefit program of the Company.
5(v) From the Effective Date until January 1, 1998,
the Company shall not issue any of its securities in
any offering pursuant to Regulation S under the
1933 Act, without the prior written consent of the
Underwriter.
3. Confirmation. Except as expressly specified herein, all other
terms, conditions and provisions of the Settlement Agreement are hereby
confirmed and shall remain in full force and effect without modification.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original and all of which shall
constitute a single document.
5. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein.
[space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Michael Kharitonov
-------------------------------
Name: Michael Kharitonov
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Owen May MAY DAVIS GROUP, INC.
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place By: /s/ Owen May
New York, New York 10005 -------------------------------
Facsimile No: (212) 480-2757 Name: Owen May
Executive Officer Title: Chairman and Chief
Address:
Owen May
May Davis Group, Inc. /s/ Owen May
Wall Street Tower ----------------------------
20 Exchange Place OWEN MAY
New York, New York 10005
Facsimile No.: (212) 480-2757
Address:
Dibo Attar /s/ Dibo Attar
c/o Woodco Fund Management -----------------------------
4900 Woodway - Suite 650 DIBO ATTAR
Houston, Texas 77056
Facsimile No.: (713) 621-8027
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Address:
Dennis Sal /s/ Dennis Sal
Dennis Sal Associates -----------------------------
15700 West Ten Mile Road DENNIS SAL
Suite 112
Southfield, Michigan 48075
Facsimile: (810) 569-6242
Address:
Davstar II Mgd. Investments DAVSTAR II MGD. INVESTMENTS CORP.
Corp. N.V. N.V.
c/o Woodco Fund Management
4900 Woodway - Suite 650 By: /s/
Houston, Texas 77056 ------------------------------
Facsimile: (713) 6221-8027 Name:
Title:
Address:
Jasminville Corp. N.V. JASMINVILLE CORP. N.V.
c/o Woodco Fund Management
4900 Woodway By: /s/
Suite 650 ------------------------------
Houston, Texas 77056 Name:
Facsimile: (713) 621-8027 Title:
Address:
Celestial Dreams Corp. N.V. CELESTIAL DREAMS CORP. N.V.
c/o Woodco Fund Management
4900 Woodway By: /s/
Suite 650 ------------------------------
Houston, Texas 77056 Name:
Facsimile: (713) 621-8027 Title:
6
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Address: EAGLEHURST CORP. N.V.
Eaglehurst Corp. N.V.
c/o Woodco Fund Management By: /s/
4900 Woodway - Suite 650 ______________________________
Houston, Texas 77056 Name: Intertrust (Curacao) N.V.
Facsimile: No. (713) 621-8027 Title: Managing Director
Address: SIGNAL HILL N.V.
Signal Hill N.V.
c/o Woodco Fund Management By: /s/
4900 Woodway - Suite 650 ______________________________
Houston, Texas 77056 Name: Intertrust (Curacao) N.V.
Facsimile: No. (713) 621-8027 Title: Managing Director
Address: WELLINGTON CORP. N.V.
Wellington Corp. N.V.
c/o Woodco Fund Management By: /s/
4900 Woodway - Suite 650 ______________________________
Houston, Texas 77056 Name: Intertrust (Curacao) N.V.
Facsimile: No. (713) 621-8027 Title: Managing Director
Address: GANATERRA CORP. N.V.
Ganaterra Corp. N.V.
c/o Woodco Fund Management By: /s/
4900 Woodway - Suite 650 ______________________________
Houston, Texas 77056 Name: Intertrust (Curacao) N.V.
Facsimile: No. (713) 621-8027 Title: Managing Director
7
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AMENDMENT TO
UNDERWRITING AGREEMENT
Amendment to Underwriting Agreement, dated as of the 23rd day of
September, 1997 (the "Amendment"), to the Underwriting Agreement, dated as of
August 12, 1996 (the "Underwriting Agreement"), by and between the parties
executing this Amendment.
W I T N E S S E T H :
WHEREAS, concurrently with the execution hereof the parties hereto
and certain third parties have executed and delivered a certain Amendment to
Settlement and Voting Agreement; and
WHEREAS, the parties hereto hereby agree that it would be in their
mutual best interest to amend the Underwriting Agreement in the manner set
forth herein;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms which are not defined herein
shall have the respective meanings set forth in the Underwriting Agreement.
2. Modifications. The Underwriting Agreement is hereby amended as
follows:
Sections 5(n), 5(p) and 5(v) of the Underwriting Agreement
shall be deleted in their entirety and the following
provisions substituted in lieu thereof:
5(n) From the Effective Date until January 1, 1998, not
issue any other shares of Common Stock or securities
convertible into Common Stock without the prior written
consent of the Underwriter, which consent shall not be
unreasonably withheld or delayed. In the event that the
Company requests the Underwriter's consent for any of the
above, the Underwriter shall have five days from the date of
such request to indicate its approval or disapproval. If the
Underwriter does not respond within such five day period,
its consent will be assumed. Notwithstanding the foregoing,
the Company may issue securities (A) upon (i) the exercise
of any warrants or options outstanding on the date hereof or
contemplated in the Prospectus pursuant to the
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terms thereof; (ii) pursuant to the exercise of the
Over-allotment Option; and (iii) the exercise of the
Underwriter's Warrant, and (B) pursuant to any of the Stock
Option Plans described in the Prospectus or plans
subsequently adopted.
5(p) For a period of two years from the Effective Date, the
Company will not file a Form S-8 registration statement
without the consent of the Underwriter, which consent will
not be unreasonably withheld; provided, however, that May
Davis hereby consents to the filing by the Company, on or
after May 14, 1998, of one or more Form S-8 registration
statements and any amendments thereto which register the
offer and sale of not more than 1,360,000 shares of Common
Stock issuable upon the exercise of stock options or
pursuant to the NetLive Performance Share Program Plan
and/or any employee benefit program of the Company.
5(v) From the Effective Date until January 1, 1998, the
Company shall not issue any of its securities in any
offering pursuant to Regulation S under the 1933 Act,
without the prior written consent of the Underwriter.
3. Confirmation. Except as expressly specified herein, all other
terms, conditions and provisions of the Underwriting Agreement are hereby
confirmed and shall remain in full force and effect without modification.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original and all of which shall
constitute a single document.
5. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein.
[Space intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Michael Kharitonov
---------------------------------------
Name: Michael Kharitonov
Title: Chairman of the Board
Chief Executive Officer
MAY DAVIS GROUP, INC.
By: /s/ Owen May
---------------------------------------
Name: Owen May
Title: Chairman and Chief
Executive Officer
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[LETTERHEAD OF NETLIVE COMMUNICATIONS]
September 23, 1997
Mr. Gary Rogers
210 Boulder Ridge Road
Scarsdale, NY 10583
Re: Amendment dated September 23, 1997 to the Settlement and Voting
Agreement dated June 12, 1997 by and among NetLive Communications,
Inc. (the "Company"), May Davis Group, Inc., Owen May, Dibo Attar,
Dennis Sal and the Funds signatory thereto (the "Amendment")
Dear Mr. Rogers:
For good and valuable consideration, the receipt of which
is hereby acknowledged, including but not limited to the Company's
execution of the Amendment, you have agreed to be bound by all of
the obligations of the Subscribing Parties under the Amendment. .
You have also hereby confirmed that as of the date of this letter
you own no capital stock of the Company. Please countersign this
letter in the space below if it accurately reflects our mutual
agreement.
NETLIVE COMMUNICATIONS, INC.
By:/s/ Michael Kharitonov
----------------------------
Michael Kharitonov
Chairman, President & CEO
Accepted and Agreed to
As of the date first above-written
/s/ Gary Rogers
--------------------
Gary Rogers
