-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AUxsvDbLAU5zjoikS+JTXG+BBr9tPt5C2UN1ccnz72KKbr7ZLt4msigVXt0nVI0A xdHyGOwRJJEIXufBECNk3w== 0000950123-06-008839.txt : 20060711 0000950123-06-008839.hdr.sgml : 20060711 20060711142243 ACCESSION NUMBER: 0000950123-06-008839 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20060705 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060711 DATE AS OF CHANGE: 20060711 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Halo Technology Holdings, Inc. CENTRAL INDEX KEY: 0001125052 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 880467845 STATE OF INCORPORATION: NV FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-33197 FILM NUMBER: 06955947 BUSINESS ADDRESS: STREET 1: 151 RAILROAD AVENUE CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: (212) 962-9277 MAIL ADDRESS: STREET 1: 151 RAILROAD AVENUE CITY: GREENWICH STATE: CT ZIP: 06830 FORMER COMPANY: FORMER CONFORMED NAME: WARP TECHNOLOGY HOLDINGS INC DATE OF NAME CHANGE: 20021017 FORMER COMPANY: FORMER CONFORMED NAME: ABBOTT MINES LTD DATE OF NAME CHANGE: 20000927 8-K 1 y23136e8vk.txt FORM 8-K 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 5, 2006 HALO TECHNOLOGY HOLDINGS, INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Nevada 000-33197 88-0467845 - ---------------------------- ------------- ------------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.)
200 Railroad Avenue, Greenwich, Connecticut 06830 --------------------------------- ----------- (Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (203) 422-2950 Not Applicable ----------------------------------------------------------- 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: [x] 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)) ITEM 1.01 ENTRY INTO MATERIAL DEFINITIVE AGREEMENTS On July 5, 2006, Halo Technology Holdings, Inc. ("Halo"), UCA Merger Sub, Inc., a wholly-owned subsidiary of Halo ("Merger Sub") and Unify Corporation ("Unify") entered into Amendment No. 2 to the Agreement and Plan of Merger ("Amendment No. 2"), which amendment amends that certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of March 14, 2006 as amended by Amendment No. 1 to the Merger Agreement ("Amendment No. 1"), dated as of March 24, 2006, by and among Halo, Merger Sub and Unify. Amendment No. 2 changes the exchange ratio granted to Unify stockholders in connection with the merger from 0.437 of one share of Halo common stock for every share of Unify common stock to 0.595 of one share of Halo common stock for every share of Unify common stock. If, at the Effective Time of the merger (as defined in the Merger Agreement), Unify has less than $2,100,000 of cash on hand, the exchange ratio shall be reduced to the ratio determined by dividing (a) 17,478,840 minus the quotient of (x)(A) $2,100,000 minus (B) the amount of cash Unify has on hand at the Effective Time of the merger, divided by (y) $1.20, by (b) 29,376,201. Amendment No. 2 revises a condition to Unify's obligation to effect the merger to now provide that Halo shall have obtained $3,000,000 in new money equity investment (in addition to any investment made by Special Situations Funds) prior to the Effective Time. Additionally, the condition to Unify's obligation to effect the merger regarding capitalization has been revised so that (i) holders of Halo's Preferred Stock (other than the Series D Preferred Stock) shall have converted into Halo common stock, (ii) holders of certain convertible promissory notes of Halo as listed on Schedule 7.3(f)(i) shall have converted such promissory notes into Halo common stock and (iii) the holders of certain promissory notes as listed on Schedule 7.3(f)(ii) shall have restructured the payment terms to be no less favorable to Halo than those described on Schedule 7.3(f)(ii). Finally, the first paragraph of the Substitute Warrant is amended by replacing "$1.8363" with "$1.356." The descriptions of the Merger Agreement and Amendment No. 2 are qualified in their entirety by reference to the Merger Agreement, which was previously filed as Exhibit 10.118 of the Current Report on Form 8-K filed by Halo with the Securities and Exchange Commission on March 20, 2006 and to Amendment No. 2 attached as Exhibit 10.125 hereto and incorporated herein by reference. Forward-Looking Statements Safe Harbor Certain statements contained in this current report regarding Halo's and Unify's future operating results or performance or business plans or prospects and any other statements not constituting historical fact are "forward-looking statements" subject, in the case of Unify, to the safe harbor created by the Private Securities Litigation Reform Act of 1995. Where possible, the words "believe," "expect," "anticipate," "intend," "should," "will," "planned," "estimated," "potential," "goal," "outlook," and similar expressions, as they relate to either company or their management, have been used to identify such forward-looking statements. All forward-looking statements reflect only current beliefs and assumptions with respect to future business plans, prospects, decisions and results, and are based on information currently available to the companies. Accordingly, the statements are subject to significant risks, uncertainties and contingencies which could cause the companies' actual operating results, performance or business plans or prospects to differ materially from those expressed in, or implied by, these statements. Such risks, uncertainties and contingencies include, but are not limited to, statements about the benefits of the merger, including future financial and operating results, Halo's plans, objectives, expectations and intentions and other statements that are not historical facts. The following factors, among others, could cause actual results to differ from those set forth in the forward-looking statements: (1) the risk of failure of Unify's stockholders to approve the merger; (2) the risk that the businesses will not be integrated successfully; (3) the risk that the cost savings and any revenue synergies from the merger may not be fully realized or may take longer to realize than expected; (4) the risk that Halo is unable to raise additional financing by the time that all other conditions to the completion of the merger have been satisfied; (5) the applicable disruption from the merger making it more difficult to maintain relationships with customers, employees or suppliers; and (6) general economic conditions and consumer sentiment in our markets. Additional factors that could cause the companies' results to differ materially from those described in the forward-looking statements are described in detail in Halo's Annual Report on Form 10-KSB for its fiscal year ended June 30, 2005, Unify's Form 10-KSB for its fiscal year ended April 30, 2005, and HALO's and Unify's other periodic and current reports filed with the Securities and Exchange Commission from time to time that are available on the SEC's internet Web site at http://www.sec.gov. Unless required by law, neither Halo nor Unify undertakes any obligation to update publicly any forward-looking statements, whether as a result of new information, future events or otherwise. Additional Information and Where to Find It Unify and Halo Stockholders are urged to read the proxy statement/prospectus regarding the proposed Merger when it becomes available because it will contain important information. Stockholders and other investors will be able when it becomes available to obtain a free copy of the proxy statement/prospectus, and are able to obtain free copies of other filings and furnished materials containing information about Halo and Unify, at the SEC's internet Web site at http://www.sec.gov. Copies of the proxy statement/prospectus when it becomes available and any SEC filings incorporated by reference in the proxy statement/prospectus can also be obtained, without charge, by directing a request to Halo Technology Holdings, 200 Railroad Avenue, 3rd Floor, Greenwich, Connecticut 06830, telephone (203) 422-2950, Attention: Investor Relations, or Unify Corporation, 2101 Arena Blvd., Suite 100, Sacramento, California 95834, telephone (916) 928-6400, Attention: Investor Relations. Interests of Participants in the Solicitation of Proxies Each of Halo and Unify and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information regarding Halo's directors and executive officers is available in its definitive proxy statement filed with the SEC by Halo under cover of Schedule 14A on October 7, 2005, and information regarding Unify's directors and executive officers is available in its definitive proxy statement filed with the SEC by Unify under cover of Schedule 14A on August 12, 2005. Copies of these documents can be obtained, without charge, by directing a request to Halo or Unify. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed with the SEC when they become available. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits 10.125 Amendment No. 2 to Agreement and Plan of Merger, dated as of July 5, 2006, among Halo Technology Holdings, Inc., UCA Merger Sub, Inc. and Unify Corporation.
-3- 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. Halo Technology Holdings, Inc. July 11, 2006 By: /s/ Ernest C. Mysogland --------------------------------- Name: Ernest C. Mysogland Title: Executive Vice President EX-10.125 2 y23136exv10w125.txt EX-10.125: AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER Exhbit 10.125 AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER This Amendment No. 2 to Merger Agreement dated as of July 5, 2006 (this "AMENDMENT"), among Halo Technology Holdings, Inc., a Nevada corporation ("PARENT"), UCA Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent ("MERGER SUB") and Unify Corporation, a Delaware corporation (the "COMPANY"). WITNESSETH: WHEREAS, Parent, Merger Sub and the Company are parties to that certain Agreement and Plan of Merger, dated as of March 14, 2006 (as amended, the "MERGER AGREEMENT"), and desire to amend the Merger Agreement as set forth herein. NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto do hereby agree as follows (capitalized terms used but not defined herein have the meanings ascribed to such terms in the Merger Agreement): 1. AMENDMENT TO SECTION 2.1(b). Section 2.1(b) is hereby amended and replaced by the following: (b) CONVERSION OF COMPANY COMMON STOCK. Subject to Sections 2.1(e) and 2.2(e), each issued and outstanding share of Company Common Stock (other than shares to be cancelled in accordance with Section 2.1(a) and shares exercising appraisal rights in accordance with Section 2.1(f)) at the Effective Time shall be converted into the right to receive 0.595 of one share of Parent Common Stock (the " Exchange Ratio "). The shares of Parent Common Stock issued in exchange for Company Common Stock, together with the Substitute Options and the Substitute Warrants, constitutes the " Merger Consideration ." As of the Effective Time and without any action on the part of the holders thereof, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the " Certificates ") shall cease to have any rights with respect thereto, except the right to receive (i) the Merger Consideration and (ii) certain dividends and other distributions in accordance with Section 2.2(c). 2. AMENDMENT TO SECTION 2.1(e). Section 2.1(e) is hereby amended and replaced by the following: (e) ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into or exercisable or exchangeable for Parent Common Stock or Company Common Stock), extraordinary dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock or Company Common Stock occurring or having a record date on or after the date hereof and prior to the Effective Time. Further, in the event that at the Effective Time the Company has cash on hand which is less than Two Million One Hundred Thousand Dollars ($2,100,000), the Exchange Ratio shall be reduced to the ratio determined by dividing (a) 17,478,840 minus the quotient of (x) (A) Two Million One Hundred Thousand Dollars ($2,100,000) minus (B) the amount of cash the Company has on hand at the Effective Time, divided by (y) $1.20, by (b) 29,376,201. 3. AMENDMENT TO SECTION 7.2. Section 7.2 is hereby amended by adding the following Section 7.2(g) to the end thereof: (g) ADJUSTMENTS TO EXCHANGE RATIO. At the Effective Time, the Company shall have cash on hand in an amount equal to or in excess of Two Million One Hundred Thousand Dollars ($2,100,000). 4. AMENDMENT TO SECTION 7.3(e). Section 7.3(e) is hereby amended and replaced by the following: (e) ADDITIONAL INVESTMENT. Parent shall have received at least Three Million Dollars ($3,000,000) in new money equity investment (in addition to any investment made by Special Situations Funds) between the date hereof and the Effective Time." 5. AMENDMENT TO SECTION 7.3(f). Section 7.3(f) is hereby amended and replaced by the following: (f) CAPITALIZATION. On or prior to the Effective Time (i) the holders of outstanding shares of the Parent's Preferred Stock (other than the Parent's Series D Preferred Stock) shall have converted such shares of preferred stock into common stock of Parent, (ii) the holders of convertible promissory notes of Parent listed on Schedule 7.3(f)(i) shall have converted such promissory notes into shares of Common Stock of Parent, and (iii) the holders of the promissory notes of Parent listed on Schedule 7.3(f)(ii) shall have restructured the payment terms to be no less favorable to Parent than those described on Schedule 7.3(f)(ii). 6. AMENDMENT TO SCHEDULE 7.3(f). Schedule 7.3(f) is hereby amended and replaced by the schedule attached hereto as Exhibit A. 7. AMENDMENT TO SUBSTITUTE WARRANT. The first paragraph of the Substitute Warrant is hereby amended by replacing the number "$1.8363" with the number "$1.356." 8. MISCELLANEOUS. (a) The validity, construction and performance of this Amendment, and any action arising out of or relating to this Amendment shall be governed by the laws of the State of Delaware, without regard to the laws of the State of Delaware as to choice or conflict of laws. -2- (b) Except as modified herein, all other terms and provisions of the Merger Agreement are unchanged and remain in full force and effect. (c) The captions contained in this Amendment are for convenience of reference only, shall not be given meaning and do not form part of this Amendment. (d) This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. This Amendment shall become effective when each party to this Amendment shall have received a counterpart hereof signed by the other parties to this Amendment. (e) This Amendment shall be binding upon any permitted assignee, transferee, successor or assign to any of the parties hereto. IN WITNESS WHEREOF, each of the parties has executed this Amendment as of the date first set forth above. PARENT: HALO TECHNOLOGY HOLDINGS, INC. By: /s/ Ernest C. Mysogland Name: Ernest C. Mysogland Title: Executive Vice President MERGER SUB: UCA MERGER SUB, INC. By: /s/ Ernest C. Mysogland Name: Ernest C. Mysogland Title: President and Sole Director COMPANY: UNIFY CORPORATION By: /s/ Todd Wille Name: Todd Wille Title: President -3- Exhibit A SCHEDULE 7.3(f) (i) Convertible Promissory Notes of Parent to be converted into Parent Common Stock: 1. Convertible notes issued January 27 and 30, 2006 in the aggregate principal amount of $1,375,000. 2. Convertible notes issued January 4, 2006 in the aggregate principal amount of $700,000; 3. Convertible note issued January 4, 2006 in the principal amount of $67,500; 4. Convertible notes issued September and October, 2005 in the aggregate principal amount of $1,150,000. (ii) The following promissory notes and obligations of Parent to be restructured to provide that no amounts will be paid on these obligations prior to December 1, 2007 unless Parent has raised equity in excess of the new equity contemplated by this Agreement, and that payment on these obligations will only be made if after such payment Parent will have cash and receivables in excess of its current liabilities (other than deferred revenue): 1. The obligations of Parent to ISIS Capital Management, LLC to pay a fee in the original amount of $1,250,000 pursuant to that certain Purchase Agreement Assignment between ISIS and Parent dated October 14, 2004. 2. Subordinated Secured Promissory Note, dated January 31, 2005 made by Parent in favor of Crestview Capital Master, LLC in the outstanding principal amount of $2,000,000. 3. Subordinated Secured Promissory Note, dated January 31, 2005 made by Parent in favor of CAMOFI Master LDC in the outstanding principal amount of $500,000. -4- -----END PRIVACY-ENHANCED MESSAGE-----