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) August 27, 1998
ARTISOFT, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
000 19462 86-0446453
(Commission File Number) (I.R.S. Employer Identification No.)
5 Cambridge Center, 3rd Floor
Cambridge, Massachusetts 02142
(Address of Principal Executive Offices) (Zip Code)
(617) 354-0600
(Registrant's Telephone Number, Including Area Code)
2202 North Forbes Boulevard
Tucson, Arizona 85745
(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Item 5. Other Events.
In August 1998, Registrant entered into two agreements modifying the
Preferred Shares Rights Agreement, dated as of December 23, 1994 (the "Rights
Agreement"), between Registrant and BankOne Arizona, N.A., as rights agent.
Effective as of July 1, 1998, BankOne Arizona, N.A., resigned as rights
agent, Harris Trust and Savings Bank was appointed as successor rights agent,
and certain other modifications were made to the Rights Agreement, pursuant to
an Agreement and Amendment dated as of July 1, 1998 (the "Resignation and
Appointment").
On August 27, 1998, Registrant and Harris Trust and Savings Bank, as
rights agent, entered into an Amendment to Rights Agreement, dated as of August
21, 1998 (the "Amendment"), pursuant to which the percentage ownership of shares
of Registrant's Common Stock, par value $0.01 per share, that will cause a
person or a group to become an "Acquiring Person " or that will cause a
"Distribution Date" and "Triggering Event" to occur (as each such term is
defined in the Rights Agreement), all subject to the further terms and
conditions of the Rights Agreement and the Amendment, was raised from 15% to
25%. As amended by the Amendment, the Rights Agreement now provides that, under
certain circumstances following (i) the acquisition of 25% or more of
Registrant's common stock by any person or group or (ii) the commencement of a
tender offer or exchange offer which would result in a person or group owning
25% or more of Registrant's outstanding common stock, rights issued under the
Rights Agreement may be exercised, among other things, to purchase at the
exercise price of $50.00 per share (subject to adjustment) common stock of
Registrant or a successor company with a market value of twice the exercise
price.
The Resignation and Appointment and the Amendment are included as
Exhibits to this Form 8K.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Businesses Acquired
None
(b) Pro Forms Financial Information
None
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(c) Exhibits
Exhibit 4.01 Agreement Regarding Appointment of Successor Rights
Agent and Related Amendments, dated as of August
14, 1998, among registrant, BankOne Arizona,
N.A. and Harris Trust and Savings Bank
Exhibit 4.02 Amendment to Rights Agreement, dated as of August
21, 1998, between registrant and Harris Trust
and Savings Bank, as rights agent.
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.
Date: August 24, 1998
ARTISOFT, INC.
By /s/ T. Paul Thomas
---------------------------
T. Paul Thomas
President and
Chief Operating Officer
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AGREEMENT REGARDING
APPOINTMENT OF SUCCESSOR RIGHTS AGENT
AND RELATED AMENDMENTS
APPOINTMENT AND AMENDMENT AGREEMENT, dated as of August 14, 1998, among
BANKONE ARIZONA, NA (the "Original Rights Agent"), HARRIS TRUST AND SAVINGS BANK
(the "Successor Rights Agent") and ARTISOFT, INC., a Delaware corporation (the
"Company").
The Company and the Original Rights Agent entered into a Rights
Agreement, dated as of December 23, 1994 (the "Rights Agreement").
The Original Rights Agent now desires to resign as rights agent under
the Rights Agreement and the Company is willing to accept such resignation.
The Company now desires to appoint the Successor Rights Agent as
successor rights agent under the Rights Agreement, and the Successor Rights
Agent desires to accept such appointment.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Resignation of Original Rights Agent. The Original Rights
Agent hereby confirms that it has resigned as Rights Agent under and as defined
in the Rights Agreement, and the Company hereby confirms that it has accepted
such resignation, effective as of the Effective Date (as defined below).
Section 2. Appointment of Successor Rights Agent. The Company hereby
appoints the Successor Rights Agent as successor Rights Agent under the Rights
Agreement, and the Successor Rights Agent accepts such appointment, effective as
of the Effective Date. The Company represents and warrants to the Successor
Rights Agent that the Company's Board of Directors has resolved to approve and
authorize, and has duly approved and authorized, such appointment.
Section 3. Conforming Modifications.
(a) Effective as of the Effective Date, all references in the Rights
Agreement (including all exhibits thereto) to "BankOne Arizona NA" or any
derivation thereof shall be deemed to refer to "Harris Trust and Savings Bank".
(b) Section 1(d) of the Rights Agreement shall be amended to read as
follows:
"(d) 'Business Day' shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
Phoenix, Arizona or Chicago, Illinois are authorized or
obligated by law or executive order to close."
(c) Section 1(e) of the Rights Agreement shall be amended to read as
follows:
"(e) 'Close of Business' on any given date shall mean
5:00 P.M., Chicago, Illinois time, on such date; PROVIDED,
<PAGE>
however, that if such date is not a Business Day it shall mean
5:00 P.M., Chicago, Illinois time, on the next succeeding
Business Day."
(d) Section 3(a) of the Rights Agreement shall be amended to read as
follows:
"(a) Until the Distribution Date, (i) the Rights will
be evidenced (subject to the provisions of Sections 3(b) and
3(c) hereof) by the certificates for Common Shares registered
in the names of the holders thereof (which certificates shall
also be deemed to be Rights Certificates) and not by separate
Rights Certificates and (ii) the right to receive Rights
Certificates will be transferable only in connection with the
transfer of Common Shares. Until the earlier of the
Distribution Date or the Expiration Date, the surrender for
transfer of such certificates for Common Shares shall also
constitute the surrender for transfer of the Rights associated
with the Common Shares represented thereby. As soon as
practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights
Agent will, if requested, send at the expense of the Company)
by first-class, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of
the Company, a Rights Certificate, in substantially the form
of Exhibit B hereto (a 'Rights Certificate'), evidencing one
Right for each Common Share so held, subject to adjustment as
provided herein. In the event that an adjustment in the number
of Rights per Common Share has been made pursuant to Section
11(a)(i), Section 11(i) or Section 11(p) hereof, then at the
time of distribution of the Rights Certificates, the Company
shall make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of the Distribution Date, the Rights will be evidenced
solely by such Rights Certificates and may be transferred by
the transfer of the Rights Certificates as permitted hereby,
separately and apart from any transfer of one or more Common
Shares, and the holders of such Rights Certificates as are
listed in the records of the Company or any transfer agent or
registrar for the Rights shall be the record holders thereof."
(e) The last sentence of Section 12 of the Rights Agreement shall be
amended to read as follows:
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"The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment contained therein and
shall not be responsible for calculating any adjustment, nor
shall it be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate."
(f) Section 18(a) of the Rights Agreement shall be amended to read as
follows:
"(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss,
liability or expense, incurred without negligence, bad faith
or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any
claim of liability in the premises. The indemnity provided for
herein shall survive the expiration of the Rights, the
termination of this Agreement, and the resignation or removal
of the Rights Agent. The costs and expenses of enforcing this
right of indemnification shall also be paid by the Company."
(g) Section 18(b) of the Rights Agreement shall be amended to read as
follows:
"(b) The Rights Agent may conclusively rely upon and
shall be protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in
reliance upon any Rights Certificate or certificate for the
Common Shares or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by
it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or
Persons, or otherwise upon the advice of counsel as set forth
in Section 20 hereof."
(h) A new Section 18(c) shall be added to Section 18 of the Rights
Agreement and shall read as follows:
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"(c) Notwithstanding anything in this Agreement to
the contrary, in no event shall the Rights Agent be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even
if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action."
(i) The prefatory portion of Section 20 shall be amended to read as
follows:
"Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, and no
implied duties or obligations shall be read into this
Agreement against the Rights Agent, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound;"
(j) Section 20(a) shall be amended to read as follows:
"(a) Before the Rights Agent acts or refrains from
acting, the Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion or
advice of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance
with such opinion or advice."
(k) A new Section 20(l) shall be added to Section 20 of the Rights
Agreement and shall read as follows:
"(l) The Rights Agent shall not be required to take
notice or be deemed to have notice of any fact, event or
determination (including, without limitation, any dates or
events defined in this Agreement or the designation of any
Person as an Acquiring Person, Affiliate or Associate) under
this Agreement unless and until the Rights Agent shall be
specifically notified in writing by the Company of such fact,
event or determination."
(l) The first sentence of Section 21 shall be amended to read as
follows:
"The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company
and to each transfer agent of the Preferred Shares and the
Common Shares by registered or certified mail, and, at the
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expense of the Company, to the holders of the Rights
Certificate by first-class mail."
(m) Section 26 of the Rights Agreement shall be amended to read as
follows:
"Section 26. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or
by the holder of any Rights Certificate to or on the Company
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Artisoft, Inc.
One South Church Avenue
Suite 2200
Tucson, Arizona 85701
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Rights Certificate to or on
the Rights Agent shall be sent by registered or certified mail
and shall be deemed given upon receipt, addressed (until
another address is filed in writing with the Company) as
follows:
Harris Trust and Savings Bank
311 West Monroe, 14th Floor
Chicago, Illinois 60606
Attention: Shareholder Services
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books
of the Company."
(n) Section 27 of the Rights Agreement shall be amended by adding the
following sentence at the end of such Section:
"Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of
the Rights Agent under this Agreement will be effective
against the Rights Agent without the execution of such
supplement or amendment by the Rights Agent."
(o) Section 32 shall be amended to read as follows:
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"Section 32. Governing Law. This Agreement and each
Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable
to contracts to be made and performed entirely within such
State, except as to the rights and obligations of the Rights
Agent, which shall be governed by and construed in accordance
with the laws of the State of Illinois."
(p) Each Right heretofore or hereafter issued under the Rights
Agreement (as amended and in effect from time to time) shall be deemed to be
amended in accordance with this Amendment.
(q) Except as modified by this Amendment, the Rights Agreement and all
Rights heretofore or hereafter issued shall continue and remain in full force
and effect.
Section 4. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 5. Effective Date. Upon execution of this Agreement, in one or
more counterparts by each of the parties hereto, this Agreement shall become
effective as of July 1, 1998 (the "Effective Date").
Section 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts to be made and performed entirely within such State, except as to the
rights and obligations of the Rights Agent, which shall be governed by and
construed in accordance with the laws of the State of Illinois.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
HARRIS TRUST AND SAVINGS BANK, as Rights Agent
By Susan A. Knaack
------------------------------
Name: Susan A. Knaack
------------------------------
Title: Officer
------------------------------
ARTISOFT, INC.
By T. Paul Thomas
------------------------------
Name: T. Paul Thomas
------------------------------
Title: President & COO
------------------------------
Confirmed with respect to Section 1 above as of the day and year first above
written:
BANKONE ARIZONA NA
By
---------------------------------
Name:
-----------------------------
Title:
-----------------------------
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AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of August 21, 1998, between ARTISOFT, INC., a
Delaware corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK (the
"Rights Agent").
The Company and BankOne Arizona, NA (the "Original Rights Agent")
heretofore entered into that certain Rights Agreement, dated as of December 23,
1994 (the "Original Rights Agreement").
The Original Trustee resigned as rights agent under the Original Rights
Agreement, the Company appointed the Rights Agent as successor rights agent
under the Original Rights Agreement, and the Rights Agent accepted such
appointment, all effective as of July 1, 1998.
The Company now desires to modify certain terms of the Original
Agreement, as provided in this Agreement, and the Rights Agent is willing to
agree to such modifications upon the direction of the Company.
Capitalized terms used and not otherwise defined in this Amendment
shall have the meanings ascribed to them in the Original Rights Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments. The original Agreement shall be amended as set
forth below:
(a) Definition of "Acquiring Person". Section 1(a) is hereby
amended by changing the percentage "15%" to the percentage "25%" each time it
appears in such section.
(b) Definition of "Distribution Date". Section 1(h) is hereby
amended by changing the percentage "15%" to the percentage "25%" in the
penultimate line of such section.
(c) Exhibit C - Stockholder Rights Plan Summary of Rights.
Exhibit C is hereby amended by changing the percentage "15%" to the percentage
"25%" each time it appears in such exhibit.
(d) Effect on Rights. Each Right heretofore or hereafter
issued under the Original Rights Agreement (as amended and in effect from time
to time) shall be deemed to be amended in accordance with this Amendment.
(e) Continuing Effect. Except as modified by this Amendment,
the Original Rights Agreement and all Rights heretofore or hereafter issued
shall continue and remain in full force and effect.
Section 2. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
Section 3. Counterparts. This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
ARTISOFT, INC.
By T. Paul Thomas
-------------------------------
Name: T. Paul Thomas
-----------------------------
Title: President and COO
----------------------------
HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
By Susan A. Knaack
-------------------------------
Name: Susan A. Knaack
-----------------------------
Title: Officer
----------------------------
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