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
August 8, 2000
(Date of earliest event reported)
PHONE.COM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 000-25687 94-3219054
(State of (Commission File No.) (IRS Employer
incorporation or Identification No.)
organization)
800 Chesapeake Drive
Redwood City, CA
(Address of principal executive offices)
94063
(zip code)
(650) 562-0200
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS
On August 8, 2000, Phone.com, Inc., a Delaware corporation ("Phone"),
and Software.com, Inc., a Delaware corporation ("Software") issued a joint
press release (the "Press Release") announcing the execution of an
agreement and plan of merger, dated as of August 8, 2000 (the "Merger
Agreement"), by and among Phone, Software and Silver Merger Sub Inc., a
Delaware corporation and a wholly owned subsidiary of Phone ("Sub") and the
intention to combine in a merger of equals. In accordance with the Merger
Agreement, Sub will be merged with and into Software with Software
continuing as the surviving corporation and a wholly owned subsidiary of
Phone (the "Merger"). As a result of the Merger, each issued and
outstanding share of Software common stock, par value $0.001 per share
("Software Common Stock"), will be converted into 1.6105 (the "Exchange
Ratio") validly issued, fully paid and nonassessable shares of Phone common
stock, par value $0.001 ("Phone Common Stock"). In addition, Phone will
assume all options and warrants outstanding under the Software existing
stock option plans, and each option and warrant will be or will later
become exercisable for shares of Phone Common Stock rather than shares of
Software Common Stock, in a number adjusted to reflect the Exchange Ratio,
and at an exercise price adjusted to reflect the Exchange Ratio. The Merger
is intended to be a tax-free reorganization under Section 368(a) of the
Internal Revenue Code of 1986, as amended, and is expected to be treated as
a pooling-of-interests for financial accounting purposes, in accordance
with generally accepted accounting principles.
In the Press Release, Phone also announced that Donald J. Listwin,
Executive Vice President of Cisco Systems, will serve as the President and
Chief Executive Office of the Phone and Software combined company.
A copy of the Merger Agreement is filed as Exhibit 2.1 hereto and is
incorporated herein by reference. A copy of the joint press release is
filed as Exhibit 99.4 hereto and is incorporated herein by reference.
In connection with entering into the Merger Agreement, Phone and
Software have entered into reciprocal stock option agreements. Pursuant to
a stock option agreement, dated August 8, 2000, Phone granted to Software
the right under certain circumstances, to purchase up to 16,516,495
shares of Phone Common Stock subject to adjustment such that the number of
shares in no event exceeds 19.9% of the shares of Phone Common Stock
outstanding, at a price of $78.0625 per share, subject to adjustment for
certain changes in Phone's capitalization (the "Phone Stock Option
Agreement"). Simultaneously, pursuant to a stock option agreement, dated
August 8, 2000, Software granted to Phone the right to purchase, under
certain circumstances, up to 9,724,460 shares of Software Common Stock
subject to adjustment such that the number of shares in no event exceeds
19.9% of the shares of Phone Common Stock outstanding, at a price of
$125.7197 per share, subject to adjustment for certain changes in
Software's capitalization (the "Software Stock Option Agreement"). The
stock options under the Phone Stock Option Agreement and the Software Stock
Option Agreement would become exercisable by each party upon the occurrence
of any event that would allow such party to collect a termination fee under
the Merger Agreement.
A copy of the Phone Stock Option Agreement is filed as Exhibit 99.1
hereto and is incorporated herein by reference. A copy of the Software
Stock Option Agreement is filed as Exhibit 99.2 hereto and is incorporated
herein by reference.
Also in connection with entering into the Merger Agreement, Phone and
Software have entered into a memorandum of understanding, dated as of
August 8, 2000, by and between Phone and Software (the "Memorandum of
Understanding"). Pursuant to the terms of the Memorandum of Understanding,
both parties agree to use good faith efforts to enter into a definitive
Reseller License and Services Agreement within ten days of the effective
date of the Memorandum of Understanding. The Memorandum of Understanding
will terminate upon the earlier of (i) the of parties entering into the
definitive Reseller License and Services Agreement and (ii) 30 days from
the effective date of the Memorandum of Understanding.
A copy of the Memorandum of Understanding is filed as Exhibit 99.3
hereto and is incorporated herein by reference.
Also in connection with entering into the Merger Agreement, certain
significant stockholders of Software have entered into voting agreements,
substantially in the form attached to the Merger Agreement as Exhibit C,
with Phone (the "Software Voting Agreements"), pursuant to which, among
other things each such stockholder has agreed to vote the shares of
Software Common Stock beneficially owned by each such stockholder in favor
of adoption of the Merger Agreement and the approval of other actions
contemplated by the Merger Agreement. Simultaneously, certain significant
stockholders of Phone also entered into voting agreements, substantially in
the form attached to the Merger Agreement as Exhibit D, with Software (the
"Phone Voting Agreements"), pursuant to which, among other things, each
such stockholder has agreed to vote the shares of Phone Common Stock
beneficially owned by each such stockholder in favor of the issuance of
Phone Common Stock in the Merger and an amendment to Phone's Certificate of
Incorporation to change Phone's name in connection with the Merger.
A copy of the forms of Software Voting Agreements and Phone Voting
Agreements are attached as Exhibits C and D respectively to the Merger
Agreement filed as Exhibit 2.1 hereto and is incorporated herein by
reference.
In addition, on August 8, 2000, the Board of Directors of Phone (the
"Board") declared a dividend distribution of one Right for each outstanding
share of Phone Common Stock to stockholders of record at the close of
business on August 18, 2000 (the "Record Date"). Each Right entitles the
registered holder to purchase from Phone a unit consisting of one
one-thousandth of a share (a "Unit") of Series A Junior Participating
Preferred Stock, par value $.001 per share (the "Series A Preferred Stock")
at a Purchase Price of $500 per Unit, subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement") dated as of August 8, 2000, between Phone and U.S.
Stock Transfer Corporation, as Rights Agent.
Subject to certain exceptions specified in the Rights Agreement, the
Rights will separate from the Phone Common Stock (the date of such
separation being referred to as "Distribution Date") and will occur upon
the earlier of (i) 10 business days following a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person")
has acquired beneficial ownership of 15% or more of the outstanding shares
of Phone Common Stock (the "Stock Acquisition Date"); and (ii) 10 business
days (or such later date as the Board shall determine) following the
commencement of a tender offer or exchange offer that would result in a
person or group becoming an Acquiring Person.
At any time until the tenth business day after a Stock Acquisition
Date, Phone may redeem the rights in whole, but not in part, at a price of
$.001 per Right, (payable in cash, Common Stock or other consideration
deemed appropriate by the Board). Immediately upon the action of the Board
electing to redeem the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the $.001 redemption price.
In the event that a Person becomes an Acquiring Person, except
pursuant to an offer for all outstanding shares of Phone Common Stock, each
holder of a Right will thereafter have the right to receive, upon exercise,
Phone Common Stock having a value equal to two times the exercise price of
the Right. Notwithstanding any of the foregoing, following the occurrence
of the event set forth in this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person will be null and void and the holder thereof
will have no rights with respect to such Rights. In addition, if at any
time following the Stock Acquisition Date, (i) Phone engages in a merger or
other business combination transaction in which Phone is not the surviving
corporation (other than with an entity which acquired the shares pursuant
to an offer the Board deemed qualified after receiving advice from one or
more investment banking firms, that the offer is (a) at a price which is
fair to stockholders and not inadequate (taking into account all factors
which such members of the Board deem relevant, including, without
limitation, prices which could reasonably be achieved if Phone or its
assets were sold on an orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of Phone and its stockholders), each
holder of a Right shall thereafter have the right to receive, upon
exercise, common stock of an acquiring company having a value equal to two
times the exercise price of the Right. The Rights are not exercisable until
the Distribution Date and will expire on August 18, 2010, unless such date
is extended or the Rights are earlier redeemed or exchanged by Phone. The
distribution of the rights is not a taxable event for stockholders of
Phone.
In connection with the adoption of the Rights Agreement, the Board of
Directors of Phone also approved the terms and designated the relative
rights, preferences and limitations of the Series A Preferred Stock.
ITEM 7. EXHIBITS.
2.1 Agreement and Plan of Merger, dated as of August 8, 2000, by
and among Phone.com, Inc., Software.com, Inc., and Silver
Merger Sub Inc together with exhibits thereto.
99.1 Stock Option Agreement, dated August 8, 2000, between
Phone.com, Inc., and Software.com, Inc.
99.2 Stock Option Agreement, dated August 8, 2000, between
Software.com, Inc., and Phone.com, Inc.
99.3 Memorandum of Understanding, dated as of August 8, 2000, by
and between Phone.com, Inc. and Software.com, Inc.
99.4 Text of the Joint Press Release of Phone.com, Inc., and
Software.com, Inc., dated August 8, 2000.
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, thereto duly authorized.
PHONE.COM, INC.
By: /s/ Alan Black
--------------------------------------------
Name: Alan Black
Title: Vice President of Finance and Administration,
Chief Financial Officer and Treasurer
Date: August 17, 2000
EXHIBIT INDEX
Exhibit Description
------- -----------
2.1 Agreement and Plan of Merger, dated as of August 8, 2000, by
and among Phone.com, Inc., Software.com, Inc., and Silver
Merger Sub Inc together with exhibits thereto.
99.1 Stock Option Agreement, dated as of August 8, 2000, between
Phone.com, Inc., and Software.com, Inc.
99.2 Stock Option Agreement, dated as of August 8, 2000, between
Software.com, Inc., and Phone.com, Inc.
99.3 Memorandum of Understanding, dated as of August 8, 2000, by
and between Phone.com, Inc. and Software.com, Inc.
99.4 Text of the Joint Press Release of Phone.com, Inc., and
Software.com, Inc., dated August 8, 2000.
