Tumbleweed Communications Corp - Additional Proxy Soliciting Materials (definitive) (DEFA14A)
June 06 2008 - 7:14AM
Edgar (US Regulatory)
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): June 5,
2008
TUMBLEWEED
COMMUNICATIONS CORP.
(Exact
name of registrant as specified in its charter)
Delaware
|
000-26223
|
94-3336053
|
(State
or other jurisdiction of incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
700
Saginaw Drive, Redwood City, California
|
|
94063
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
Registrant’s
telephone number, including area code:
|
(
650)
216-2000
|
|
(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 (see General Instruction A.2. below):
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
x
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
ITEM
1.01 Entry into Material Definitive
Agreement.
On
June 5, 2008, Axway Inc., a Delaware corporation ("Axway") and an
indirect wholly-owned subsidiary of the Sopra Group SA, a corporation
organized under the laws of France (the "Sopra Group"), Tornado Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Axway ("Merger
Sub"), and Tumbleweed Communications Corp., a Delaware corporation
("Tumbleweed"), entered into an Agreement and Plan of Merger (the "Merger
Agreement"), under which Merger Sub will be merged with and into Tumbleweed,
with Tumbleweed continuing after the merger as the surviving corporation and a
wholly-owned subsidiary of Axway (the "Merger"). In addition, the
Sopra Group guaranteed the obligations of Axway and Merger Sub under the Merger
Agreement.
Pursuant
to the Merger Agreement, at the effective time of the Merger, each issued and
outstanding share of common stock, par value $0.001 per share, of Tumbleweed
("Tumbleweed Common Stock") will be converted into the right to receive $2.70 in
cash, without interest ("Merger Consideration"). Additionally, at the effective
time of the Merger, each outstanding option and restricted stock share or unit,
whether or not then vested or exercisable, to purchase Tumbleweed Common Stock,
will be deemed 100% vested and exercisable on the terms and conditions set forth
in the Merger Agreement. The proposed transaction is subject to
customary closing conditions including regulatory and Tumbleweed stockholder
approvals.
The
foregoing description of the Merger is not complete and is qualified in its
entirety by reference to the Merger Agreement and the related agreements,
which are filed as Exhibit 2.1 hereto and are incorporated herein by
reference.
Additional
Information and Where to Find It
This
communication may be deemed to be solicitation material in respect of the
proposed merger of Tumbleweed by Sopra Group and Axway. In connection with the
proposed merger, Axway and Tumbleweed intend to file relevant materials with the
SEC, including Tumbleweed's proxy statement on Schedule 14A.
STOCKHOLDERS OF TUMBLEWEED ARE URGED
TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING TUMBLEWEED’S PROXY
STATEMENT, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION
. Investors and security holders will be able to obtain the
documents free of charge at the SEC’s web site, http://www.sec.gov, and
Tumbleweed stockholders will receive information at an appropriate time on how
to obtain transaction-related documents for free from Tumbleweed. Such documents
are not currently available.
Participants
in Solicitation
The
directors of Sopra Group, Axway, and Tumbleweed, may be deemed to be
participants in the solicitation of proxies from the holders of Tumbleweed
common stock in respect of the proposed transaction. Information about the
directors of Sopra Group is set forth in the 2007 Reference Document which was
filed with the AMF (Autorité des marchés financiers) on April 23, 2008. In
addition, the following executives of Sopra Group/Axway may deemed to be
participants: Christophe Fabre, Dave Bennett, Scott Hausman and Kathleen
Clark Bracco. Information about the directors and executive officers
of Tumbleweed is set forth in the proxy statement for Tumbleweed's 2008 Annual
Meeting of Stockholders, which was filed with the SEC on April 30, 2008.
Investors may obtain additional information regarding the interest of such
participants by reading the proxy statement regarding the merger when it becomes
available.
Safe
Harbor for Forward-Looking Statements
This
press release and the information meeting announced in it contain
forward-looking statements that involve risks, uncertainties and assumptions. If
such risks or uncertainties materialize or such assumptions prove incorrect,
actual results could differ materially from those expressed or implied by such
forward-looking statements and assumptions. All statements other than statements
of historical fact are statements that could be deemed forward-looking
statements, including the anticipated timing of filings and approvals relating
to the transaction; the expected timing of the completion of the transaction;
the expected benefits and costs of the transaction; management plans relating to
the transaction; the ability to complete the transaction considering the various
closing conditions, including those conditions related to antitrust and CFIUS
(Exon-Florio) regulations; any projections of earnings, revenues, synergies,
accretion, margins or other financial items; any statements of the plans,
strategies and objectives of management for future operations, including the
execution of integration plans; any statements of expectation or belief; and any
statements of assumptions underlying any of the foregoing. Risks, uncertainties
and assumptions include risks related to the timing or ultimate completion of
the transaction; the possibility that expected benefits may not materialize as
expected; that, prior to the completion of the transaction, Tumbleweed’s
business may not perform as expected due to uncertainty; that the parties are
unable to successfully implement integration strategies; and other risks and
uncertainties that are beyond the control of Sopra Group and Tumbleweed. Sopra
Group and Tumbleweed disclaim any obligation to update or correct any
forward-looking statements made herein due to the occurrence of events after the
issuance of this press release.
ITEM
8.01 Other Events.
In
connection with the Merger, Sopra Group, Axway and Tumbleweed issued a joint
press release which is filed as Exhibit 99.1 hereto and is incorporated herein
by reference.
ITEM
9.01 Financial Statements and
Exhibits.
(d) Exhibits.
Exhibit
No.
|
Description
|
2.1
|
Agreement
and Plan of Merger among Axway Inc., Tornado Acquisition Corp. and
Tumbleweed Communications Corp., dated June 5, 2008, including Guarantee
and Voting Agreements.
|
99.1
|
Joint
Press Release issued by Sopra Group, Axway and Tumbleweed Communications
Corp., dated June 6, 2008, entitled "Sopra Group Announces a Plan of
Merger, via its Subsidiary Axway, with Tumbleweed
Communications."
|
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 hereunto duly
authorized.
|
TUMBLEWEED
COMMUNICATIONS CORP.
|
|
|
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By:
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/s/
James J. MacDonald
|
|
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Name: James
J. MacDonald
|
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Title: Vice
President & Deputy General Counsel
|
|
|
|
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Date: June
6, 2008
|
|
EXHIBIT
INDEX
Exhibit
No.
|
Description
|
2.1
|
Agreement
and Plan of Merger among Axway Inc., Tornado Acquisition Corp. and
Tumbleweed Communications Corp., dated June 5, 2008, including Guarantee
and Voting Agreements.
|
99.1
|
Joint
Press Release issued by Sopra Group, Axway and Tumbleweed
Communications Corp., dated June 6, 2008, entitled "Sopra Group Announces
a Plan of Merger, via its Subsidiary Axway, with Tumbleweed
Communications."
|
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