d8k.htm
UNITED
STATES
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): July 7, 2008
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(Exact
name of registrant as specified in its charter)
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(State
or other jurisdiction
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(Commission
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(IRS
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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20400
Stevens Creek Boulevard, Suite 400
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(Address
of principal executive offices and zip code)
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Registrant’s
telephone number, including area code: (408)
517-6100
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(Former
name or former address, if changed since last
report.)
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Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry
into a Material Definitive Agreement.
On
July 7, 2008, Chordiant Software, Inc., a Delaware corporation (the “Company”)
entered into a Rights Agreement (the “Rights Agreement”) with American Stock
Transfer & Trust Company, LLC as Rights Agent (the “Rights
Agent”). The Rights Agent presently serves as the Company’s transfer
agent with respect to the Company’s Common Stock and also has been appointed
transfer agent with respect to the Series A Junior Participating Preferred
Stock, par value $0.001 per share, if any, that may be issued pursuant to the
exercise of rights under the Rights Agreement. The material terms and
conditions of the Rights Agreement are described below in response to Item 3.03,
Material Modifications to Rights of Security Holders, set forth
below. The response to Item 3.03 is hereby incorporated herein by
reference in its entirety in response to Item 1.01 of this Current Report on
Form 8-K.
Item
3.03. Material
Modification to Rights of Security Holders
On
July 7, 2008, the Board of Directors of the Company declared a dividend of one
preferred share purchase right (a “Right”) for each outstanding share of Common
Stock, par value $0.001 per share (the “Common Shares”), of the
Company. The dividend is payable on July 21, 2008 (the “Record Date”)
to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $0.001 per share
(the “Preferred Shares”), at a price of $20.00 per one one-hundredth of a
Preferred Share (the “Purchase Price”), subject to adjustment. Each
one one-hundredth of a Preferred Share has designations and powers, preferences
and rights, and the qualifications, limitations and restrictions designed to
make it the economic equivalent of a Common Share. The description
and terms of the Rights are set forth in the Rights Agreement.
Initially,
the Rights will be evidenced by the stock certificates representing the Common
Shares then outstanding, and no separate Right Certificates, as defined below,
will be distributed. Until the earlier to occur of (i) the date of a
public announcement that a person, entity or group of affiliated or associated
persons have acquired beneficial ownership of 20% or more of the outstanding
Common Shares (an “Acquiring Person”) or (ii) 10 business days (or such later
date as may be determined by action of the Board of Directors prior to such time
as any person or entity becomes an Acquiring Person) following the commencement
of, or announcement of an intention to commence, a tender offer or exchange
offer the consummation of which would result in any person or entity becoming an
Acquiring Person (the earlier of such dates being called the “Distribution
Date”), the Rights will be evidenced, with respect to any of the Common Share
certificates outstanding as of the Record Date, by such Common Share certificate
with or without a copy of the Summary of Rights, which is included in the Rights
Agreement as Exhibit C thereto (the “Summary of Rights”).
Until
the Distribution Date, the Rights will be transferable with and only with the
Common Shares. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Share certificates issued after the Record
Date, upon transfer or new issuance of Common Shares, will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender or transfer of any certificates for Common Shares outstanding as of
the Record Date, even without such notation or a copy of the Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Right Certificates”) will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The
Rights are not exercisable until the Distribution Date. The Rights
will expire on July 21, 2011 (the “Final Expiration Date”), unless the Rights
are earlier redeemed or exchanged by the Company, in each case, as described
below.
The
Purchase Price payable, and the number of Preferred Shares or other securities
or other property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above). The exercise
of Rights to purchase Preferred Shares is at all times subject to the
availability of a sufficient number of authorized but unissued Preferred
Shares.
The
number of outstanding Rights and the number of one one-hundredths of a Preferred
Share issuable upon exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Shares or a stock dividend on the Common
Shares payable in Common Shares or subdivisions, consolidation or combinations
of the Common Shares occurring, in any case, prior to the Distribution
Date.
Preferred
Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1.00 but will be entitled to an
aggregate dividend of 100 times the dividend declared per Common
Share. In the event of liquidation, the holders of the Preferred
Shares would be entitled to a minimum preferential liquidation payment of $100
per share, but would be entitled to receive an aggregate payment equal to 100
times the payment made per Common Share. Each Preferred Share will
have 100 votes, voting together with the Common Shares. Finally, in
the event of any merger, consolidation or other transaction in which Common
Shares are exchanged, each Preferred Share will be entitled to receive 100 times
the amount of consideration received per Common Share. These rights
are protected by customary anti-dilution provisions. Because of the
nature of the Preferred Shares’ dividend and liquidation rights, the value of
one one-hundredth of a Preferred Share should approximate the value of one
Common Share. The Preferred Shares would rank junior to any other
series of the Company’s preferred stock.
In
the event that any person or group of affiliated or associated persons becomes
an Acquiring Person, proper provision shall be made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring Person and its
associates and affiliates (which will thereafter be void), will for a sixty (60)
day period have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right (or, if such
number of shares is not and cannot be authorized, the Company may issue
Preferred Shares, cash, debt, stock or a combination thereof in exchange for the
Rights). This right will terminate sixty (60) days after the date on
which the Rights become nonredeemable (as described below), unless there is an
injunction or similar obstacle to exercise of the Rights, in which event this
right will terminate sixty (60) days after the date on which the Rights again
become exercisable.
Generally,
under the Rights Agreement, an “Acquiring Person” shall not be deemed to include
(i) the Company, (ii) a subsidiary of the Company, (iii) any employee benefit or
compensation plan of the Company, (iv) any entity holding Common Shares for or
pursuant to the terms of any such employee benefit or compensation plan or (v)
any person or entity that, together with its affiliates and associates,
beneficially owned 20% or more of the outstanding Common Shares as of July 21,
2008, until such person or entity or its affiliates or associates becomes the
beneficial owner of any additional Common Shares. In addition, except
under limited circumstances, no person or entity shall become an Acquiring
Person as the result of the acquisition of Common Shares by the Company that, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such person or entity to 20% or more of the Common
Shares then outstanding. Further, except under certain circumstances,
no person shall become an Acquiring Person due to the acquisition of Common
Shares directly from the Company.
In
the event that the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold
to an Acquiring Person, its associates or affiliates or certain other persons in
which such persons have an interest, proper provision will be made so that each
holder of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of shares
of common stock of the acquiring company which at the time of such transaction
will have a market value of two times the exercise price of the
Right.
At
any time after an Acquiring Person becomes an Acquiring Person and prior to the
acquisition by such Acquiring Person of 50% or more of the outstanding Common
Shares, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which have become void), in whole or
in part, at an exchange ratio of one Common Share, or one one-hundredth of a
Preferred Share, per Right (or, at the election of the Company, the Company may
issue cash, debt, stock or a combination thereof in exchange for the Rights),
subject to adjustment.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional Preferred Shares will be issued (other than
fractions that are integral multiples of the number of one one-hundredths of a
Preferred Share issuable upon the exercise of one Right, which may, at the
election of the Company, be evidenced by depositary receipts), and in lieu
thereof, an adjustment in cash will be made based on the market price of the
Preferred Shares on the last trading day prior to the date of
exercise.
At
any time prior to the earliest of (i) the day of the first public announcement
that a person has become an Acquiring Person or (ii) the Final Expiration Date,
the Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.001 per Right (the “Redemption
Price”). Following the expiration of the above periods, the Rights
become nonredeemable. Immediately upon any redemption of the Rights,
the right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The
terms of the Rights may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights, except that from and after
such time as the rights are distributed no such amendment may adversely
affect the interest of the holders of the Rights excluding the interests of an
Acquiring Person.
Until
a Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends.
The
Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company’s Board of Directors. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors since the Rights may be amended to permit such
acquisition or redeemed by the Company at $0.001 per Right prior to the earliest
of (i) the time that a person or group has acquired beneficial ownership of
20% or more of the Common Shares or (ii) the final expiration date of the
rights.
Item
9.01. Financial
Statements and Exhibits.
(d)
Exhibits
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Exhibit
No.
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Description
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3.3
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Certificate
of Designation for Series A Junior Participating Preferred
Stock.
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4.10
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Rights
Agreement dated as of July 10, 2008, by and between the Company and
American Stock Transfer & Trust Company, LLC.
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4.11
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Form
of Rights Certificate.
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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.
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Date:
July 11, 2008
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CHORDIANT
SOFTWARE, INC.
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By:
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/s/
Steven R.
Springsteel
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Steven
R. Springsteel
Chairman,
President and Chief Executive Officer
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INDEX TO EXHIBITS
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Exhibit
No.
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Description
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3.3
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Certificate
of Designation for Series A Junior Participating Preferred
Stock.
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4.10
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Rights
Agreement dated as of July 10, 2008, by and between the Company and
American Stock Transfer & Trust Company, LLC.
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4.11
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Form
of Rights Certificate.
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