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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): JUNE 15, 1998
FTP SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 0-22466 04-2906463
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(State of Incorporation) (Commission File Number) (IRS Employer Identification No.)
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2 HIGH STREET
NORTH ANDOVER, MASSACHUSETTS 01845
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (978) 685-4000
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ITEM 5. OTHER EVENTS
(a) AGREEMENT AND PLAN OF REORGANIZATION
FTP Software, Inc. (the "Company"), NetManage, Inc. ("NetManage") and
Amanda Acquisition Corp. ("Merger Sub") have entered into an Agreement and Plan
of Reorganization dated as of June 15, 1998 (the "Reorganization Agreement")
which provides for the acquisition of the Company by NetManage through a merger
of the Company with Merger Sub (the "Merger") whereby each outstanding share of
the Common Stock, par value $0.01 per share, of the Company ("Company Common
Stock") will be converted into the right to receive 0.72767 shares (the
"Exchange Ratio") of the Common Stock, par value $0.01 per share, of NetManage
("NetManage Common Stock"), subject to the conditions set forth in the
Reorganization Agreement.
The Exchange Ratio is subject to adjustment if (i) the net revenues of
the Company determined in accordance with generally accepted accounting
principles ("Net Revenues") for the quarter ending June 30, 1998 ("Company Third
Quarter Revenues") are less than $9,000,000 and/or (ii) the Net Revenues of the
Company for the two months ending August 31, 1998 ("Company Third Quarter
Revenues") are less than $4,900,000 (or, if the closing of the Merger occurs
before that date, if Net Revenues of the Company for the month of July 1998 are
less than $2,450,000) and/or (iii) the cash and cash equivalents of the Company
on June 30, 1998 are less than $60 million, subject to certain adjustments. If
any of the conditions described in the preceding sentence are not met, then the
Exchange Ratio will be reduced to the amount obtained by dividing the number of
"Adjusted Merger Shares" by 34,024,336. "Adjusted Merger Shares" means a number
of shares of NetManage Common Stock equal to 24,758,452 minus the number of
shares of NetManage Common Stock obtained by dividing (A) (x) the amount by
which Company Second Quarter Revenues plus the excess, if any, of Company Third
Quarter Revenues over $4,900,000 are less than $9,000,000, plus (y) the amount
by which Company Third Quarter Revenues are less than $4,900,000 (or, if the
closing of the Merger occurs before August 31, 1998, the amount by which Net
Revenues for July 1998 are less than $2,450,000), plus (z) the amount by which
cash and cash equivalents of the Company on June 30, 1998 are less than
$60,000,000, subject to certain adjustments, by (B) the average of the closing
prices for the NetManage Common Stock as reported on the Nasdaq National Market
for the 20 trading days ending on the day prior to the closing date of the
Merger.
The closing of the Merger is subject to a number of conditions,
including (a) certain approvals by the stockholders of the Company and the
stockholders of NetManage, respectively, (b) the expiration or early termination
of all waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, (c) the receipt by NetManage of letters from the independent accountants
for each of NetManage and the Company to the effect that the Merger qualifies
for pooling of interest accounting treatment and (d) the absence of any material
adverse effect, as defined in the Reorganization Agreement, with respect to
either the Company or NetManage.
The summary of the Reorganization Agreement set forth above is
qualified in its entirety by reference to the Reorganization Agreement, which is
incorporated herein by reference to the Current Report on Form 8-K of NetManage
filed with the Securities and Exchange Commission (the "Commission") on June 19,
1998.
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(b) AMENDMENT TO RIGHTS AGREEMENT
On June 15, 1998, the Company entered into Amendment No. 3 to the
Rights Agreement dated as of December 1, 1995 between the Company and State
Street Bank and Trust Company, as Rights Agent, as amended by Amendment to
Rights Agreement dated as of November 7, 1996 and by Amendment No. 2 to Rights
Agreement dated as of February 27, 1998 (as amended, the "Rights Agreement").
Amendment No. 3 amends the Rights Agreement to permit the parties to the
Reorganization Agreement to consummate the Merger without triggering the
exercisability of the Rights (as defined in the Rights Agreement).
The original Rights Agreement is incorporated herein by reference to
the Registration Statement on Form 8-A of the Company filed with the Commission
on December 12, 1995. The Amendment to Rights Agreement dated as of November 7,
1996 is incorporated herein by reference to the Quarterly Report on Form 10-Q of
the Company for the quarter ended September 30, 1996, filed with the Commission
on November 14, 1996. Amendment No. 3 to the Rights Agreement is filed with this
report as Exhibit 4.3 and hereby incorporated herein by reference. The summary
of Amendment No. 3 to the Rights Agreement set forth above is qualified in its
entirety by reference to such exhibit.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) EXHIBITS
2 Agreement and Plan of Reorganization dated as of June 15, 1998
by and among NetManage, Inc., FTP Software, Inc. and Amanda
Acquisition Corp. (1)
4.1 Form of Rights Agreement dated as of December 1, 1995 between
FTP Software, Inc. and State Street Bank and Trust Company, as
Rights Agent. (2)
4.2 Form of Amendment to Rights Agreement dated as of November 7,
1996 between FTP Software, Inc. and State Street Bank and
Trust Company, as Rights Agent. (3)
4.3 Form of Amendment No. 3 to Rights Agreement dated as of June
15, 1998 between FTP Software and State Street Bank and Trust
Company, as Rights Agent.*
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* Filed herewith.
(1) Incorporated herein by reference to the Current Report on Form 8-K of
NetManage filed with the Commission on June 19, 1998.
(2) Incorporated herein by reference to the Registration Statement on Form
8-A of the Company filed with the Commission on December 12, 1995.
(3) Incorporated herein by reference to the Quarterly Report on Form 10-Q
of the Company for the quarter ended September 30, 1996, filed with the
Commission on November 14, 1996.
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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.
FTP SOFTWARE, INC.
Date: June 19, 1998 By: /s/ James A. Tholen
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James A. Tholen,
Senior Vice President, Chief Operating
Officer and Chief Financial Officer
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EXHIBIT INDEX
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Exhibit No. Description
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2 Agreement and Plan of Reorganization dated as of June 15, 1998
by and among NetManage, Inc., FTP Software, Inc. and Amanda
Acquisition Corp. (1)
4.1 Form of Rights Agreement dated as of December 1, 1995 between
FTP Software, Inc. and State Street Bank and Trust Company, as
Rights Agent. (2)
4.2 Form of Amendment to Rights Agreement dated as of November 7,
1996 between FTP Software, Inc. and State Street Bank and
Trust Company, as Rights Agent. (3)
4.3 Form of Amendment No. 3 to Rights Agreement dated as of June
15, 1998 between FTP Software, Inc. and State Street Bank and
Trust Company, as Rights Agent.*
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* Filed herewith.
(1) Incorporated herein by reference to the Current Report on Form 8-K of
NetManage filed with the Commission on June 19, 1998.
(2) Incorporated herein by reference to the Registration Statement on Form
8-A of the Company filed with the Commission on December 12, 1995.
(3) Incorporated herein by reference to the Quarterly Report on Form 10-Q
of the Company for the quarter ended September 30, 1996, filed with the
Commission on November 14, 1996.
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Exhibit 4.3
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 to Rights Agreement (this "Amendment"), dated as of
June 15, 1998, amends the Rights Agreement dated as of December 1, 1995 between
FTP Software, Inc., a Massachusetts corporation (the "Company"), and State
Street Bank and Trust Company, a national banking association (the "Rights
Agent"), as amended by Amendment to Rights Agreement dated as of November 7,
1996 between the Company and the Rights Agent and by Amendment No. 2 to Rights
Agreement dated as of February 27, 1998 between the Company and the Rights Agent
(the "Rights Agreement").
WHEREAS, the Board of Directors of the Company has approved an amendment
to the Rights Agreement pursuant to Section 27 thereof;
NOW THEREFORE, in consideration of these premises, the mutual agreements
herein set forth, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged by each party, the parties hereto hereby agree as
follows:
1. Amendment. The definition of "Acquiring Person" set forth in Section
1(a) of the Rights Agreement is hereby amended to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates of such Person, shall be the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of the Company,
(iv) any Person organized, appointed, or established by the Company or a
Subsidiary of the Company pursuant to the terms of any plan described in
clause (iii) above or (v) any Person who has reported or is required to
report its or their beneficial ownership (but less than 20%) on Schedule
13G under the Exchange Act (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or successor
report) which Schedule 13D does not state any intention to or reserve the
right to control or influence the management or policies of the Company or
engage in any of the actions specified in Item 4 of such Schedule (other
than the disposition of the Common Stock) and, within 10 Business Days of
being requested by the Company to advise it regarding the same, certifies
to the Company that such Person acquired shares of Common Stock in excess
of 14.9% inadvertently or without knowledge of the terms of the Rights and
who, together with all of such Person's Affiliates, thereafter does not
acquire additional shares of Common Stock while the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails to do so within
10 Business Days, then such Person shall become an Acquiring Person on the
day immediately following the last day of such 10 Business Day Period.
As used above, the term "Acquiring Person" shall not include (i)
Kopp Investment Advisors, Inc. ("KIA"), Kopp Holding Company ("KHC") or
LeRoy C.
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Kopp ("Kopp") (but no purchaser or assignee of any such Person or direct
or indirect purchaser or transferee of any shares of Common Stock of the
Company from any such Person) so long as (A) the number of shares of
Common Stock of the Company beneficially owned by all such Persons does
not exceed 6,722,400 shares in the aggregate (such number to be adjusted
in the event of any stock dividend, stock split or combination of shares,
recapitalization, repurchase of shares by the Company or any other change
in the Company's capital stock which in the determination of the Board in
its sole discretion requires an adjustment to such number to maintain it
at less that 20% of the Company's outstanding shares), (B) none of such
Persons has filed a Schedule 13D or Schedule 13G that expresses any
intention or reservation of the right (1) to control or influence the
management or policies of the Company or (2) to engage in any of the
actions specified in Item 4 of such Schedule 13D (other than (a) the
disposition of Common Stock and (b) the acquisition of Common Stock up to
the maximum number set forth above, provided that the condition in the
preceding clause (B)(1) is met), (C) neither KHC nor Kopp owns directly 5%
or more of the shares of Common Stock then outstanding, or (ii) NetManage,
Inc. ("NMI") as a result of the execution, delivery or performance by the
parties thereto of the Agreement and Plan of Reorganization dated as of
June 15, 1998 among NMI, a Delaware corporation, Amanda Acquisition Corp.,
a Massachusetts corporation and the Company, as the same may be amended
from time to time, or the consummation of the transactions contemplated
thereby pursuant to the terms thereof."
2. Effect of Amendment. Except as expressly amended hereby, the Rights
Agreement shall remain in full force and effect.
3. Governing Law. This Amendment shall be deemed to be a contract made
under the laws of The Commonwealth of Massachusetts and for all purposes shall
be governed by and construed in accordance with the laws of said state
applicable to contracts made and to be performed entirely within said state.
4. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day first above written.
ATTEST: FTP SOFTWARE, INC.
By _______________________________
Name:
Title:
ATTEST: STATE STREET BANK AND TRUST
COMPANY
By _______________________________
Name:
Title:
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