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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
Date of Report (Date of Earliest Event Reported): JANUARY 22, 1999
HNC SOFTWARE INC.
(Exact name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-26146 33-0248788
(Commission File Number) (I.R.S. Employer Identification Number)
5930 CORNERSTONE COURT WEST, SAN DIEGO, CA 92121
(Address of Principal Executive Offices)
(619) 546-8877
(Registrant's Telephone Number, Including Area Code)
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ITEM 5: OTHER EVENTS
On January 22, 1999, HNC Software Inc., a Delaware corporation ("HNC"),
acquired Aptex Software Inc., a California corporation that was a subsidiary of
HNC ("Aptex"), by merging Aptex with and into HNC pursuant to a statutory
short-form merger (the "Merger"). Prior to the Merger, HNC owned more than 90%
of the outstanding shares of Common Stock and 100% of the outstanding shares of
Preferred Stock of Aptex. The remaining shares were owned by employees and
former employees of Aptex.
Aptex was formed by HNC in September 1996 to develop and market products
employing proprietary electronic text analysis technology for Internet-related
applications. Aptex's Internet products include SelectResponse(TM), a product
that helps customer-focused enterprises enhance and automate online and call
center responses to real-time customer inquiries, and SelectCast(TM), a product
that personalizes online content and shopping by analyzing high-volume text
streams and observed user behavior, making individual recommendations of
products, offers, ads and information in real time.
In connection with the Merger, HNC paid the minority shareholders of
Aptex a cash purchase price of $5.25 per share of Aptex Common Stock, for an
aggregate purchase price of approximately $5,337,827 in cash. Of such sum, an
aggregate of $3,281,250 was paid to Michael A. Thiemann, Vice President of HNC's
Financial Solutions Group and former President and member of the Board of
Directors of Aptex, in consideration of HNC's purchase from Mr. Thiemann of
625,000 shares of Aptex Common Stock prior to the date of the Merger. The
consideration paid for the shares of Aptex Common Stock by HNC to Mr. Thiemann
and the other minority shareholders of Aptex was determined by the Board of
Directors of HNC after considering, among other factors, appraisals obtained by
two independent appraisal firms. The costs of the acquisition were paid from
HNC's working capital.
In addition, pursuant to the Merger, HNC assumed outstanding options to
purchase an aggregate of 2,246,174 shares of Aptex Common Stock and converted
such options into options to purchase an aggregate of 400,532 shares of HNC
Common Stock. A Registration Statement on Form S-8 has been filed with the
Securities and Exchange Commission with respect to the shares of HNC Common
Stock underlying the assumed options.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
None required under Rule 3-05(b) of Regulation S-X.
(b) Pro Forma Financial Information.
None required under Rule 11-01(b) of Regulation S-X.
(c) Exhibits.
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The following exhibits are filed herewith:
2.01 Plan of Merger dated December 21, 1998 adopted by Registrant and
Aptex Software Inc.
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 thereunto duly authorized.
HNC SOFTWARE INC.
By: /s/ Raymond V. Thomas
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Date: February 5, 1999 Raymond V. Thomas,
Chief Financial Officer
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
2.01 Plan of Merger dated December 21, 1998 adopted by Registrant and
Aptex Software Inc.
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EXHIBIT 2.01
PLAN OF MERGER
DECEMBER 21, 1998
THIS PLAN OF MERGER (this "PLAN") is adopted by the Board of Directors
of HNC SOFTWARE INC., a Delaware corporation ("HNC"), and the Board of Directors
of APTEX SOFTWARE INC., a California corporation (the "COMPANY"), pursuant to
Section 1110 of the California Corporations Code and Section 253 of the Delaware
General Corporation Law.
RECITALS
A. HNC currently owns 100% of the issued and outstanding shares of
the Series A Preferred Stock of the Company (which is the only authorized series
of Preferred Stock of the Company) and more than 90% of the issued and
outstanding shares of the Common Stock of the Company. Consequently, HNC owns
shares of the Company's capital stock representing more than 90% of the issued
and outstanding shares of each class of the Company's capital stock.
B. HNC and the Company desire to consummate a statutory short form
merger pursuant to which the Company will be merged with and into HNC, with HNC
being the surviving corporation of such merger and the Company ceasing to exist
as a separate corporate entity following such merger. Upon the consummation of
such merger, the issued and outstanding shares of the Company's Common Stock
(other than any such shares held by HNC) will be converted into the right to
receive a cash payment, and all shares of the Company's capital stock owned by
HNC will be canceled without the payment of any consideration therefor.
C. The merger of the Company with and into HNC will be effected as
a short form merger pursuant to the provisions of Section 1110 of the California
Corporations Code and Section 253 of the Delaware General Corporation Law and
other applicable provisions of California and Delaware law, and by virtue of the
Merger, HNC will acquire all the assets and properties of the Company and will
assume all of the liabilities of the Company.
D. This Plan is adopted as a plan of reorganization pursuant to
Section 368(a) of the Internal Revenue Code of 1968, as amended (the "CODE"),
and as a plan of liquidation pursuant to Section 332 of the Code.
ARTICLE 1
CERTAIN DEFINITIONS
As used in this Plan, the following terms will have the meanings set
forth below:
1.1 The "MERGER" means the statutory short form merger of the
Company with and into HNC to be effected pursuant to the terms and conditions of
this Plan, in which HNC will be the surviving corporation of such merger.
1.2 The "EFFECTIVE TIME" means the time and date on which the Merger
first becomes legally effective under the laws of the States of California and
Delaware as a result of the filing
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with the Delaware Secretary of State of a Certificate of Ownership and Merger
conforming to the requirements of Section 253 of the Delaware General
Corporation Law (the "DELAWARE CERTIFICATE"), followed by filing of a certified
copy of the Delaware Certificate with the California Secretary of State as
provided in Section 1108 of the California Corporations Code.
1.3 "HNC COMMON STOCK" means HNC's Common Stock, $0.001 par value
per share.
1.4 "HNC AVERAGE PRICE PER SHARE" means the average of the closing
prices per share of HNC Common Stock as quoted on the Nasdaq National Stock
Market and reported in The Wall Street Journal for the ten (10) trading days
immediately preceding (but not including) the Effective Time.
1.5 "COMPANY COMMON STOCK" means the Common Stock, no par value, of
the Company.
1.6 "COMPANY SERIES A PREFERRED STOCK" means the Series A Preferred
Stock, no par value, of the Company.
1.7 "COMPANY OPTIONS" means, collectively, options to purchase
shares of Company Common Stock granted by the Company under the Company's 1996
Equity Incentive Plan, as amended (the "COMPANY EQUITY PLAN").
1.8 "COMPANY DISSENTING SHARES" means any shares of capital stock of
the Company that (i) are outstanding immediately prior to the Effective Time and
qualify fully as "dissenting shares" within the meaning of Section 1300(b) of
the California Corporations Code and (ii) with respect to which dissenter's
rights to require the purchase of such dissenting shares for cash at their fair
market value in accordance with Chapter 13 of the California Corporations Code
have been duly and properly exercised and perfected in connection with the
Merger.
1.9 "CONVERSION NUMBER" means the quotient obtained by dividing (a)
$6.25 by (b) the HNC Average Price Per Share.
Other capitalized terms defined elsewhere in this Plan and not defined
in this Article I will have the meanings assigned to such terms in this Plan.
ARTICLE 2
PLAN OF MERGER
2.1 Conversion or Cancellation of Company Shares.
2.1.1 HNC Stock. At the Effective Time, each share of the
capital stock of HNC that is issued and outstanding immediately prior to the
Effective Time will remain unchanged and unaffected by the Merger.
2.1.2 Conversion of Company Common Stock. At the Effective
Time, each share of Company Common Stock that is issued and outstanding
immediately prior to the
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Effective Time (other than any shares of Company Common Stock that are Company
Dissenting Shares as provided in Section 2.1.4 and other than any shares of
Company Common Stock owned by HNC) will, by virtue of the Merger and without the
need for any further action on the part of the holder thereof, be converted into
the right to receive payment of $5.25 in cash (by check) from HNC, subject to
compliance with Article 3 hereof.
2.1.3 Cancellation of Company Stock Owned by HNC. At the
Effective Time, each share of Company Series A Preferred Stock and each share of
Company Common Stock that is issued and outstanding immediately prior to the
Effective Time and is then owned by HNC will, by virtue of the Merger and
without the need for any further action on the part of HNC, be canceled without
the payment of any consideration therefor.
2.1.4 Company Dissenting Shares. Holders of Company Dissenting
Shares, if any, will be entitled to their dissenter's appraisal rights under
Chapter 13 of the California Corporations Code with respect to such Company
Dissenting Shares and such Company Dissenting Shares will not be converted into
the right to receive payment of $5.25 in cash from HNC pursuant to Section
2.1.2. Shares of Company Common Stock (other than shares owned by HNC) that are
issued and outstanding immediately prior to the Effective Time with respect to
which dissenting shareholders' rights of appraisal under the California
Corporations Code have not been properly perfected will, when such dissenting
shareholders' rights can no longer be legally exercised under the California
Corporations Code, be converted into the right to receive payment of $5.25 in
cash from HNC as provided in Section 2.1.2.
2.2 Assumption and Conversion of Company Options.
2.2.1 Assumption by HNC.
(a) Assumption and Conversion of Company Options. At
the Effective Time, each Company Option that is outstanding immediately prior to
the Effective Time will, by virtue of the Merger and without the need for any
further action on the part of the holder thereof, be assumed by HNC and
converted into a non-qualified option (an "HNC OPTION") to purchase that number
of shares of HNC Common Stock determined by multiplying the number of shares of
Company Common Stock subject to such Company Option immediately prior to the
Effective Time by the Conversion Number, rounded up (if the fraction is 0.5 or
greater) or down (if the fraction is less than 0.5) to the nearest whole number,
at an exercise price per share of HNC Common Stock equal to the exercise price
per share of Company Common Stock that was in effect for such Company Option
immediately prior to the Effective Time divided by the Conversion Number
(rounded down to the nearest whole cent); provided, however, that if the
foregoing calculation would result in an assumed and converted Company Option
being converted into an HNC Option that, after aggregating all the shares of HNC
Common Stock subject to such HNC Option, would be exercisable for a fraction of
a share of HNC Common Stock, then the number of shares of HNC Common Stock
subject to such HNC Option will be rounded (down, if the fraction is less than
0.5, and up, if the fraction is 0.5 or higher) to the nearest whole number of
shares of HNC Common Stock.
(b) Treatment of Aptex Option Terms in HNC Options.
The terms,
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exercisability, vesting schedule and all other terms and conditions of each
Company Option that is converted into an HNC Option by virtue of the Merger
(including but not limited to the provisions of the Company Equity Plan that
form part of the terms and conditions of such Company Option) will (except as
otherwise provided in the terms of such Company Options), to the extent
permitted by applicable law and otherwise reasonably practicable, be unchanged
and continue in effect at the Merger, EXCEPT THAT any such Company Option that
is an "incentive stock option" will at the effectiveness of the Merger lose its
status as an "incentive stock option" under Section 422 of the Code and will,
under the Code, instead be an non-qualified stock option, and EXCEPT THAT from
and after the Effective Time of the Merger the HNC General Repurchase Option to
purchase outstanding Company Options contained in Section 22 of the Company
Equity Plan will terminate and will cease to be binding on the holders of HNC
Options issued upon conversion of Compa ny Options in the Merger.
(c) Vesting. Pre-Merger employment service with the
Company will be credited to each holder of a Company Option for purposes of
applying any vesting schedule contained in a Company Option to determine the
number of shares of HNC Common Stock that are vested and exercisable under the
HNC Option into which such Company Option is converted in the Merger. The
vesting of the right to exercise any Company Option (or any HNC Option into
which it is converted in the Merger) will not accelerate by reason of, or in
connection with, the Merger.
(d) Notice of Assumption. Each holder of a Company
Option will receive, as soon as reasonably practicable after the Effective Time,
a written notice from HNC setting forth (i) the number of shares of HNC Common
Stock subject to each assumed Company Option, and (ii) the exercise price per
share at which each such share of the HNC Common Stock issuable upon exercise of
such assumed Company Option is purchasable.
2.2.2 Form S-8 Registration. HNC will use its diligent efforts
to cause the shares of HNC Common Stock that are subject to the HNC Options that
are issued in the Merger upon the conversion of the Company Options pursuant to
Section 2.2.1 to be registered on a registration statement (or to be issued
pursuant to a then-effective registration statement) on Form S-8 (or successor
form) promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended, within thirty (30) days following the
Effective Time, and will use its diligent efforts to maintain the effectiveness
of such Form S-8 registration statement or registration statements for so long
as such HNC Options remain outstanding and HNC Common Stock is registered under
the Securities Exchange Act of 1934, as amended.
2.3 Adjustments for Capital Changes. Notwithstanding the provisions
of Section 2.1 or Section 2.2, if at any time prior to the Effective Time, HNC
recapitalizes, either through a subdivision (or stock split) of any of its
outstanding shares into a greater number of shares, or a combination (or reverse
stock split) of any of its outstanding shares into a lesser number of shares, or
reorganizes, reclassifies or otherwise changes its outstanding shares into the
same or a different number of shares of other classes (other than through a
subdivision or combination of shares provided for in the previous clause), or
declares a dividend on its outstanding shares payable in shares of HNC Common
Stock or in shares or securities convertible into shares of HNC Common Stock
(each, a "CAPITAL CHANGE"), then the provisions of this Plan will be
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appropriately adjusted to reflect and give effect to such Capital Change. HNC's
acquisition of any business and/or any assets pursuant to a statutory merger or
otherwise (including any such transaction involving the issuance of shares of
HNC Common Stock) will not be deemed to be a Capital Change.
2.4 Effects of the Merger. At and upon the Effective Time of the
Merger:
(a) the separate existence of the Company will cease and the
Company will be merged with and into HNC, and HNC will be the surviving
corporation of the Merger (the "SURVIVING CORPORATION") and assume all of the
Company's liabilities pursuant to the terms of this Plan;
(b) each share of the Company's Series A Preferred Stock and
each share of Company Common Stock owned by HNC that is issued and outstanding
immediately prior to the Effective Time will be canceled without the payment of
any consideration therefor as provided in Section 2.1.3;
(c) each share of Company Common Stock that is issued and
outstanding immediately prior to the Effective Time (other than Company
Dissenting Shares and other than shares owned by HNC) will be converted into the
right to receive a payment of $5.25 in cash from HNC as provided in this Article
2 and in Article 3 hereof;
(d) each Company Option that is outstanding immediately
prior to the Effective Time will be converted into an HNC Option as provided in
this Article 2; and
(e) the Merger will, from and after the Effective Time, have
all of the effects provided by applicable law.
2.5 Reorganization and Liquidation. The parties intend to adopt this
Plan and the Merger as a plan of reorganization pursuant to Section 368(a) of
the Code and as a plan of liquidation in accordance with the provisions of
Section 332 of the Code.
ARTICLE 3
SURRENDER OF STOCK CERTIFICATES
3.1 Surrender of Company Certificates. Prior to or promptly
following the Effective Time, each holder of shares of Company Common Stock
(other than HNC) will surrender the certificate(s) for such shares (each a
"COMPANY CERTIFICATE") to HNC for cancellation as of the Effective Time,
together with a completed and signed Internal Revenue Service Form W-8 or W-9,
as applicable. If any Company Certificate shall have been lost, stolen or
destroyed, then HNC and/or its payment agent may in its discretion require, as a
condition to payment, that the shareholder of such lost, stolen or destroyed
Company Certificate execute and deliver to HNC an indemnity agreement in favor
of HNC and/or its payment agent, in form and substance satisfactory to HNC,
indemnifying them against loss or liability incurred due to such lost, stolen or
destroyed Company Certificate.
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3.2 Payment. Except to the extent otherwise provided in Section
2.1.4, promptly after the Effective Time and receipt of such Company
Certificates, together with the required Form W-8 or W-9, as applicable, HNC or
its payment agent will pay such tendering holder of a Company Certificate the
amount of $5.25 per share in cash (by check).
3.3 Condition to Payment. No amounts otherwise payable to a holder
pursuant to Article 2 will be paid to the holder of any unsurrendered Company
Certificate in respect of the shares of Company Common Stock represented by such
Company Certificate until the holder of such unsurrendered Company Certificate
surrenders such Company Certificate to HNC as provided above. Subject to the
effect, if any, of applicable escheat and other laws, following surrender of any
Company Certificate, there will be delivered to the person entitled thereto, the
amount payable with respect to the shares of Company Common Stock represented by
such Company Certificate pursuant to Article 2.
3.4 No Further Transfers. After the Effective Time there will be no
further registration of transfers of Company Stock on the stock transfer books
of the Company or its transfer agent. If, after the Effective Time, Company
Certificates are presented for any reason, they will be canceled and exchanged
as provided in this Article 3.
ARTICLE 4
TERMINATION AMENDMENT OR ABANDONMENT OF PLAN
4.1 Termination or Abandonment. This Plan may be terminated or
abandoned by the HNC Board of Directors in its sole discretion, for any reason
or no reason, with or without cause, at any time prior to the Effective Time.
4.2 Amendment. This Plan may be amended at any time prior to the
Effective Time if such amendment is approved and adopted by the Board of
Directors of HNC and the Board of Directors of the Company.
ARTICLE 5
MISCELLANEOUS
5.1 Counterparts. This Plan may be executed in counterparts, each of
which will be an original as regards any party whose signature appears thereon
and all of which together will constitute one and the same instrument. This Plan
will become binding when one or more counterparts hereof, individually or taken
together, bears the signatures of both parties reflected hereon as signatories.
5.2 Further Assurances. HNC and the Company each agree to execute
and deliver such other documents, certificates, agreements and other writings
and to take such other actions as may be necessary or desirable in order to
consummate expeditiously or implement the transactions contemplated by this
Plan.
5.3 Absence of Third Party Beneficiary Rights. No provisions of this
Plan are intended, nor will be interpreted, to provide or create any third party
beneficiary rights or any other rights of any kind in any client, customer,
affiliate, shareholder, optionee, partner of any party hereto or any other
person or entity unless specifically provided otherwise herein.
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