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): August 21,
2019
____________________
SUPPORT.COM, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or Other Jurisdictionof Incorporation)
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000-30901
(Commission
File Number)
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94-3282005
(I.R.S.
Employer Identification No.)
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1521 Concord Pike (US 202), Suite 301
Wilmington, DE 19803
(Address
of Principal Executive Offices)(Zip Code)
|
(650) 556-9440
(Registrant’s
Telephone Number, Including Area Code)
N/A
(Former
Name or Former Address, if Changed Since Last Report)
|
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:
☐
Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
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|
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Title
of each class
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Trading symbol(s)
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Name of each exchange on which registered
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Common
Stock, $0.0001 par value per share
|
SPRT
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The Nasdaq Stock Market
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in as defined in Rule 405 of the Securities Act of 1933
(§ 230.405 of this chapter) or Rule 12b–2 of the
Securities Exchange Act of 1934 (§240.12b–2 of this
chapter).
Emerging growth
company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01.
Entry
into a Material Definitive Agreement.
On
August 21, 2019, the Board of Directors (the “
Board
”) of Support.com,
Inc. (the “
Company
”) approved and
adopted a Section 382 Tax Benefits Preservation Plan, dated as of
August 21, 2019, by and between the Company and Computershare Trust
Company, N.A., as rights agent (the “
Rights Agent
”) (the
“
Section 382 Tax
Benefits Preservation Plan
”). Pursuant to the Section
382 Tax Benefits Preservation Plan, the Board declared a dividend
of one preferred share purchase right (each, a “
Right
”) for each
outstanding share of common stock, par value $0.0001, of the
Company (the “
Common
Stock
”). The dividend is distributable on September 3,
2019 to stockholders of record as of the close of business on
September 3, 2019.
The
following is a summary description of the Rights. This summary is
intended to provide a general description only, does not purport to
be complete and is qualified in its entirety by reference to the
complete text of the Section 382 Tax Benefits Preservation Plan, a
copy of which is attached to this Current Report on Form 8-K as
Exhibit 4.1 and is incorporated herein by reference. All
capitalized terms used herein but not defined herein shall have the
meanings ascribed to such terms in the Section 382 Tax Benefits
Preservation Plan.
The
Board adopted the Section 382 Tax Benefits Preservation Plan to
diminish the risk that the Company could experience an
“ownership change” as defined in Section 382 of the
Internal Revenue Code of 1986, as amended (the “
Code
”), which could
substantially limit or permanently eliminate the Company’s
ability to utilize its net operating loss carryovers (collectively,
the “
NOLs
”) to reduce
potential future income tax obligations. Under the Code and the
regulations promulgated thereunder by the U.S. Treasury Department,
these NOLs may be “carried forward” in certain
circumstances to offset any current and future taxable income and
thus reduce federal income tax liability, subject to certain
requirements and restrictions. While the amount and timing of the
Company’s future taxable income cannot be predicted with any
certainty and, accordingly, the Company cannot predict the amount
of these NOLs that will ultimately be used to reduce its income tax
liability, to the extent that the NOLs do not otherwise become
limited, these NOLs could be a potentially valuable asset to the
Company.
In
general, under Section 382 of the Code, an “ownership
change” occurs if the Company’s stockholders or groups
of stockholders who are deemed to own at least 5% of the Common
Stock collectively increase their ownership by more than 50
percentage points over their lowest ownership percentage within a
rolling three year period. If an ownership change occurs, Section
382 would impose an annual limit on the amount of the
Company’s NOLs that can be used to offset the Company’s
federal taxable income equal to the product of the total value of
the Company’s outstanding equity immediately prior to the
ownership change (reduced by certain items specified in Section
382) and the federal long-term tax-exempt interest rate in effect
for the month of the ownership change. A number of complex rules
apply to calculating this annual limit and there are several
special rules that, depending on the rule involved, may apply to
reduce or increase such limit. If an ownership change were to
occur, the limitations imposed by Section 382 could result in a
substantial delay in the timing of the usage of the Company’s
NOLs or in a material amount or all of the Company’s NOLs
expiring unused and, therefore, significantly impair or eliminate
the value of such NOLs. While the Company periodically monitors its
NOLs and currently believes that an ownership change that would
impair the value of its NOLs has not occurred, the complexity of
Section 382’s provisions and the limited knowledge any public
company has about the ownership of its publicly traded stock make
it difficult to determine whether an ownership change has in fact
occurred. In addition, some of the limitations associated with
Section 382 focus on the relative size of a corporation’s
“non-business assets,” or investment assets (including
cash, cash equivalents and marketable securities), to its equity
value. These rules make the Company’s commercial risk from a
Section 382 limitation triggering event particularly profound given
the relative size of its current cash on hand to its market
capitalization. As applied to the Company’s current cash
position and current market capitalization, if the Company was to
currently experience an ownership change, it could be subject to
Section 382’s “non-business asset” limitation
which could result in the Company permanently losing all $143.4
million of its NOLs.
The
Section 382 Tax Benefits Preservation Plan is intended to act as a
deterrent to any person or group acquiring beneficial ownership of
4.99% or more of the outstanding Common Stock without the approval
of the Board. A person who acquires, without the approval of the
Board, beneficial ownership (other than as a result of repurchases
of stock by the Company, dividends or distributions by the Company
or certain inadvertent actions by stockholders) of 4.99% or more of
the outstanding Common Stock (including any ownership interest held
by that person’s Affiliates and Associates as defined under
the Section 382 Tax Benefits Preservation Plan) could be subject to
significant dilution. Stockholders who beneficially own 4.99% or
more of the outstanding Common Stock prior to the first public
announcement by the Company of the Board’s adoption of the
Section 382 Tax Benefits Preservation Plan will not trigger the
Section 382 Tax Benefits Preservation Plan so long as they do not
acquire beneficial ownership of additional shares of the Common
Stock (other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding shares of Common Stock or
pursuant to a split or subdivision of the outstanding shares of
Common Stock) at a time when they still beneficially own 4.99% or
more of such stock. In addition, the Board retains the sole
discretion to exempt any person or group from the penalties imposed
by the Section 382 Tax Benefits Preservation Plan.
The Rights
. The Board authorized the
issuance of one Right per each outstanding share of the Common
Stock distributable to the Company’s stockholders of record
as of the close of business on September 3, 2019. One Right will
also be issued together with each share of the Common Stock issued
after September 3, 2019 but before the Distribution Date (as
defined below) and, in certain circumstances, after the
Distribution Date. Subject to the terms, provisions and conditions
of the Section 382 Tax Benefits Preservation Plan, if the Rights
become exercisable, each Right would initially represent the right
to purchase from the Company one one-thousandth of a share (a
“
Unit
”)
of Series B Junior Participating Preferred Stock, par value $0.0001
per share, of the Company (the “
Series B Preferred
Stock
”) for a purchase price of $3.00 (the
“
Purchase
Price
”). If issued, each Unit of Series B Preferred
Stock would give the stockholder approximately the same dividend,
voting and liquidation rights as does one share of the Common
Stock. However, prior to exercise, a Right does not give its holder
any rights as a stockholder of the Company, including, without
limitation, any dividend, voting or liquidation
rights.
Acquiring Person
. Under the Section 382
Tax Benefits Preservation Plan, an “Acquiring Person”
is any person who or which, together with all Affiliates and
Associates of such person, is or becomes the beneficial owner of
4.99% or more of the shares of Common Stock outstanding other than
as a result of repurchases of stock by the Company, dividends or
distributions by the Company or certain inadvertent actions by
stockholders. Beneficial ownership is determined as provided in the
Section 382 Tax Benefits Preservation Plan and generally includes,
without limitation, any ownership of securities a person would be
deemed to actually or constructively own for purposes of Section
382 of the Code or the Treasury Regulations promulgated thereunder.
The Section 382 Tax Benefits Preservation Plan provides that the
following shall not be deemed an Acquiring Person thereunder: (i)
the Company or any Subsidiary of the Company; (ii) any employee
benefit plan or employee stock plan of the Company or any
Subsidiary of the Company, or any person organized, appointed,
established or holding shares of Common Stock of the Company for or
pursuant to the terms of any such plan; (iii) any person who would
otherwise be an Acquiring Person upon the first public announcement
by the Company of the adoption of the Section 382 Tax Benefits
Preservation Plan, unless and until such person, or any Affiliate
of such person, acquires beneficial ownership of any additional
shares of Common Stock of the Company after the first public
announcement by the Company of the adoption of the Plan (other than
pursuant to a stock split, stock dividend or similar transaction)
at a time when such person still beneficially owns 4.99% or more of
the Common Stock; (iv) any “direct public group” within
the meaning of Treasury Regulations Section 1.382-2T(j)(2)(ii);
(v) any person who as the result of an acquisition of shares
of Common Stock by the Company (or any Subsidiary of the Company,
or any person organized, appointed, established or holding shares
of Common Stock of the Company for or pursuant to the terms of any
such plan) which, by reducing the number of shares of Common Stock
of the Company outstanding, increases the proportionate number of
shares of Common Stock of the Company beneficially owned by such
person to 4.99% or more of the shares of Common Stock of the
Company then outstanding; (vi) any person who or which, within ten
(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 4.99% inadvertently or
without knowledge of the terms of the Rights and who or which,
together with all Affiliates and Associates, thereafter within ten
(10) business days following such certification reduces such
person’s (together with its Affiliates’ and
Associates’) beneficial ownership to less than 4.99% of the
shares of Common Stock then outstanding. provided, however, that
(x) if the person requested to so certify fails to do so within ten
(10) business days or breaches or violates such certification, then
such person shall become an Acquiring Person immediately after such
ten (10) business day period or such breach or violation or (y) if
the person together with its Affiliates and Associates fails to
reduce beneficial ownership to less than 4.99% within ten (10)
business days following such certification, then such person shall
become an Acquiring Person immediately after such ten (10) business
day period; and (vii) any person who the Board determines, in its
sole discretion, prior to the time such person would otherwise be
an Acquiring Person, should be permitted to become the beneficial
owner of up to a number of the shares of Common Stock determined by
the Board (the “
Exempted Number
”) and be
exempted from being an Acquiring Person, unless and until such
person acquires beneficial ownership of shares of Common Stock of
the Company in excess of the Exempted Number (other than pursuant
to a stock split, stock dividend or similar transaction) in which
case such person shall be an Acquiring Person.
A
person (other than any “direct public group” within the
meaning of Treasury Regulations Section 1.382-2T(j)(2)(ii)) will be
treated as the beneficial owner of 4.99% or more shares of the
Common Stock if, in the determination of the Board, that person
would be treated as a “5-percent stockholder” for
purposes of Section 382 (substituting “4.99” for
“5” each time “five” or “5” is
used in or for such purposes of Section 382).
Initial Exercisability
. The Rights will
not be exercisable until the close of business on the earlier to
occur of (i) the tenth (10th) calendar day after the day on
which a public announcement or filing that a person or group of
affiliated or associated persons has become an “Acquiring
Person,” or (ii) the tenth (10th) calendar day (or a later
date determined by the Board) after the commencement of a tender or
exchange offer the consummation of which would result in a person
becoming an Acquiring Person (the earlier of these dates is called
the “
Distribution
Date
”).
Until
the Distribution Date, the Common Stock certificates or the
ownership statements issued with respect to uncertificated shares
of Common Stock will evidence the Rights. Any transfer of shares of
Common Stock prior to the Distribution Date will also constitute a
transfer of the associated Rights. After the Distribution Date,
separate rights certificates will be issued and the Rights may be
transferred other than in connection with the transfer of the
underlying shares of Common Stock unless and until the Board has
determined to effect an exchange pursuant to the Section 382 Tax
Benefits Preservation Plan (as described below).
Flip-In Event
. In the event that a
person becomes an Acquiring Person, each holder of a Right, other
than Rights that are or, under certain circumstances, were
beneficially owned by the Acquiring Person (which will thereupon
become void), will thereafter have the right to receive upon
exercise of a Right and payment of the Purchase Price, and subject
to the terms, provisions and conditions of the Section 382 Tax
Benefits Preservation Plan, a number of shares of the Common Stock
having a market value of two times the Purchase Price.
Redemption
. At any time until close of
business on the tenth (10th) calendar day after the day a public
announcement or the filing is made indicating that a person has
become an Acquiring Person (and prior to the giving of notice of
the exchange or redemption, as applicable to the holders of the
Rights), or thereafter under certain circumstances, the Company may
redeem the Rights in whole, but not in part, at a price of $0.001
per Right (the “
Redemption Price
”). The
redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board in its sole
discretion may establish. 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.
Exchange
. At any time after a person
becomes an Acquiring Person, the Board may exchange all or part of
the outstanding Rights (other than those held by an Acquiring
Person) for shares of Common Stock at an exchange rate of one share
of Common Stock, or a fractional share of Series B Preferred Stock
(or of a share of a similar class or series of the Company’s
preferred stock having similar rights, preferences and privileges)
of equivalent value, per Right (subject to
adjustment).
Expiration
. The Rights and the Section
382 Tax Benefits Preservation Plan will expire upon the earliest of
(i) the date on which all of the Rights are redeemed, (ii) the
date on which the Rights are exchanged, (iii) the consummation of a
reorganization transaction entered into by the Company resulting in
the imposition of stock transfer restrictions that the Board
determines will provide protection for the Company’s tax
attributes similar to that provided by the Section 382 Tax Benefits
Preservation Plan, (iv) the close of business on the effective date
of the repeal of Section 382, or any other change, if the Board
determines that the Section 382 Tax Benefits Preservation Plan, is
no longer necessary or desirable for the preservation of the
Company’s tax attributes, (v) the date on which the
Board otherwise determines that the Section 382 Tax Benefits
Preservation Plan is no longer necessary to preserve the
Company’s tax attributes, (vi) the beginning of a taxable
year of the Company to which the Board determines that none of the
Company’s tax attributes may be carried forward,
(vii) the Close of Business on the day
following the certification of the voting results of the
Company’s 2020 annual meeting of stockholders, if at such
stockholder meeting a proposal to approve the Agreement has not
been passed by the affirmative vote of the majority of the votes
cast at the 2020 annual meeting of stockholders or any other
meeting of stockholders of the Company duly held prior to August
21, 2020, and (viii) August 21, 2022
.
Preferred Stock Purchasable Upon Exercise of
Rights
. After the Distribution Date, each Right will entitle
the holder, subject to the terms, provisions and conditions of the
Section 382 Tax Benefits Preservation Plan, to purchase, for the
Purchase price, one one-thousandth of a share of the Series B
Preferred Stock having economic and other terms similar to that of
one share of Common Stock. This portion of a share of Series B
Preferred Stock is intended to give a stockholder approximately the
same dividend, voting and liquidation rights as would one share of
Common Stock, and should approximate the value of one share of
Common Stock.
Anti-Dilution Provisions
. The Board may
adjust the Purchase Price, the number of shares of Series B
Preferred Stock or other securities or assets issuable and the
number of outstanding Rights to prevent dilution that may occur as
a result of certain events, including among others, a stock
dividend, a stock split or a reclassification of the Series B
Preferred Stock or the Common Stock.
Amendments
. Until the close of business
on the tenth (10th) calendar day after the day a public
announcement or a filing is made indicating that a person has
become an Acquiring Person, or thereafter under certain
circumstances, the Company may amend the Rights in any manner. The
Company may also amend the Section 382 Tax Benefits Preservation
Plan after the close of business on the tenth (10th) calendar day
after the day a public announcement or filing is made indicating
that a person has become an Acquiring Person, to cure ambiguities,
to correct defective or inconsistent provisions or to otherwise
change or supplement the Tax Benefits Preservation Plan in any
manner that does not adversely affect the interests of holders of
the Rights.
Tax Consequences
. The issuance of the
Rights should not be taxable to the Company or to stockholders
under presently existing federal income tax law. However, if the
Rights become exercisable or if the Rights are redeemed,
stockholders may recognize taxable income, depending on the
circumstances then existing.
The
Section 382 Tax Benefits Preservation Plan continues and replaces
the Company’s prior rights plan which expired by its terms on
April 20, 2019.
Stockholder Ratification
. The Company
intends to submit the Section 382 Tax Benefits Preservation Plan
for stockholder ratification at its 2020 Annual Meeting of
Stockholders.
Item
1.02.
Termination
of a Material Definitive Agreement.
See the
description set out under “Item 1.01 — Entry into a
Material Definitive Agreement,” which is incorporated by
reference into this Item 1.02.
Item
3.03.
Material Modification to Rights of Security
Holders
.
See the
description set out under “Item 1.01 — Entry into a
Material Definitive Agreement,” which is incorporated by
reference into this Item 3.03.
Item
5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
.
In
connection with the adoption of the Section 382 Tax Benefits
Preservation Plan described in Item 1.01 above, the Board approved
an Amended and Restated Certificate of Designation, Preferences,
and Rights of Series B Junior Participating Preferred Stock of
Support.com, Inc. (the “Certificate of Designation”).
The Certificate of Designation was filed with the Secretary of
State of the State of Delaware and became effective on August 21,
2019. The Certificate of Designation is attached to this Current
Report on Form 8-K as Exhibit 3.1 and is incorporated herein by
reference.
Item
8.01.
Other Events
.
Also,
on August 21, 2019, the Company issued a press release announcing
that its Board has approved and adopted a Section 382 Tax Benefits
Preservation Plan, a copy of which is attached to this Current
Report on Form 8-K as Exhibit 99.1 and is incorporated herein by
reference.
Item
9.01.
Financial Statements and Exhibits
.
Exhibit
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Description
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Amended
and Restated Certificate of Designation of Series B Junior
Participating Preferred Stock, as filed with the Secretary of State
of Delaware on August 21, 2019 (filed herewith).
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Section
382 Tax Benefits Preservation Plan, dated as of August 21, 2019, by
and between Support.com, Inc. and Computershare Trust Company,
N.A., as Rights Agent (filed herewith).
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Press
Release issued by Support.com, Inc. on August 21, 2019 (filed
herewith).
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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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SUPPORT.COM, INC.
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Date:
August 22, 2019
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/s/
Richard Bloom
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|
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Richard
Bloom
President
and Chief Executive Officer
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