UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF
1934
July 1, 2011
Commission File Number: 001-34423
CDC Software
Corporation
(Translation of registrants name into English)
Cayman Islands
(Jurisdiction of incorporation or organization)
Unit 706-707, Building
9
No. 5 Science Park West Avenue
Hong Kong Science Park
Shatin, New Territories
Hong Kong
(Address of principal executive office)
Indicate by check mark whether
the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
x
Form
20-F
¨
Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
¨
Indicate by check mark whether the registrant by furnishing the information contained in this
Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
¨
Yes
x
No
If Yes is marked, indicate below the file number assigned to the registrant in connection with Rule
12g3-2(b):
n/a
Other Events.
3.75% Senior Exchangeable Convertible Notes Due 2011
On June 28, 2011, the New York
Supreme Court (the Court) granted Evolutions (as hereinafter defined) motion for summary judgment with respect to Evolutions case against CDC Corporation (CDC), the parent of CDC Software Corporation, in the
ongoing litigation between the parties. An order with respect to this decision has not yet been entered by the Court, but it is expected to enter judgment in favor of Evolution within approximately thirty (30) days.
Evolution claimed approximately $68.0 million in damages related to this matter, and the parties will have the opportunity to present their respective
positions on the proper amount of damages. CDC may also appeal the ruling.
The separate lawsuit against Evolution, in which CDC is seeking
injunctive relief, monetary damages in excess of $295.0 million and punitive damages in excess of $500.0 million, and in which CDC has moved to allege that Evolution: (i) communicated confidential and material non-public information to third
parties, including hedge funds that have traded CDCs stock; (ii) sought to interfere with CDCs plans for the initial public offering of CDC Software Corporation; and (iii) sought to otherwise tortiously interfere with the
operations and control of the CDC, remains pending.
In the coming months, CDC intends to file several motions and pleadings with the Court,
including a request for a stay of the judgment pending appeal. Depending upon the outcome of the motions and pleadings that CDC files, CDC may appeal the ruling, which may require that it post a bond in the amount of up to the judgment. Based upon
current facts and circumstances, CDC believes that it will have the ability, through a combination of internal and external sources, to post a bond, or otherwise pay any amounts that may become due under the Notes or as a result of this decision. By
posting the bond, CDC would have the right to suspend execution of the final judgment once issued, which means any judgment would not have to be paid during the appellate process. The appeals process could take approximately one year to complete,
and there can be no assurance that CDC will be successful either in reducing or eliminating any award to Evolution, obtaining a bond, or in any potential appeal.
CDCs management is evaluating the potential impact of the Courts hearing on CDC and its affiliates.
Furthermore, management of CDC has continued to evaluate various alternatives for addressing the Evolution litigation, that are in the best interests of CDC and its shareholders, including the potential
repayment of any remaining amounts owed under the Notes, which by their terms are scheduled to mature in November 2011.
On April 21,
2011, each of CDC and Evolution CDC SPV Ltd., Evolution Master Fund Ltd., SPC, Segregated Portfolio M and E1 Fund (collectively, Evolution) filed motions for summary judgment with the Court with respect to the ongoing litigation between
the parties. On June 28, 2011, the Court heard oral argument on the pending motions for summary judgment and ruled, despite that CDCs objections, that: (i) CDCs amendments to the 3.75% Senior Exchangeable Convertible Notes Due
2011 (the Notes) and the Note Purchase Agreement related thereto (the NPA) were invalid; (ii) the initial public offering of CDC Software Corporation was not a Qualified IPO, as such term is defined in the NPA;
(iii) the exercise of the holder redemption put by Evolution in November 2009 was effective; and (iv) that CDCs non-payment to Evolution of the amount owed pursuant to the holder redemption right represents a default under the Notes
and NPA.
There can be no assurance that CDC will be successful in resolving the Evolution matter in a manner favorable to CDC.
This Form 6-K contains forward-looking statements within the meaning of the United States Private Securities Litigation Reform Act of 1995, including
statements relating to, among other things, CDCs beliefs regarding the Evolution litigation and the outcome and impact thereof on it, CDCs expected plans to reverse or reduce the ruling once reduced to a judgment, CDCs expectations
regarding obtaining and posting a bond and the suspension of execution of any final judgment, CDCs beliefs regarding the timing of the appellate process, CDCs beliefs regarding its lawsuit against Evolution, CDCs beliefs about its
ability, through a combination of internal and external sources, to post a bond, or otherwise pay any amounts that may become due under the Notes or as a result of this decision, CDCs beliefs about any successful resolution of this matter, and
other statements which are not historic fact. These statements are based on CDC managements current expectations and are subject to risks and uncertainties and changes in circumstances. There are important factors that could cause actual
results to differ materially from those anticipated in the forward-looking statements, many of which are outside of our or CDCs control, including the risk that CDC will not prevail in its future efforts with respect to this matter, including
CDCs efforts to reverse or reduce the jurys award, or that CDC will not prevail on appeal; the risk of any potential impact a verdict in this case may have on other disputes CDC now or may in the future have; the potential impact of this
matter on CDCs business and customers, or ours; the risk of obtaining a bond in a sufficient amount and upon terms acceptable to CDC, and other risks. Further information on risks or other factors that could cause results to differ is detailed
in CDC Corporations and CDC Software Corporations filings or submissions with the United States Securities and Exchange Commission. All forward-looking statements included herein are based upon information available as of the date
hereof, and you are cautioned not to place undue reliance on any forward looking statements which speak only as of the date hereof. Neither CDC Software Corporation nor CDC Corporation assumes any obligation to update or alter the forward looking
statements whether as a result of new information, future events or otherwise.
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.
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CDC Software Corporation
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Date: July 1, 2011
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By:
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/s/ Donald L. Novajosky
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Name:
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Donald L. Novajosky
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Title:
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General Counsel
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