UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(§240.13e-100)
RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
Amendment No. 1
MARLBOROUGH SOFTWARE DEVELOPMENT HOLDINGS, INC.
(Name of the Issuer)
MARLBOROUGH SOFTWARE DEVELOPMENT HOLDINGS, INC.
PAGEFLEX ACQUISITIONS, INC.
EINAV HI-TEC ASSETS LTD.
AMOS KAMINSKI
PINHAS ROMIK
JAMES P. DORE
ELLY PERETS
COSTAS KITSOS
RONI A. EINAV
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE US$0.01 PER SHARE
(Title of Class of Securities)
571038108
(CUSIP Number of Class of Securities)
| Marlborough Software Development Holdings, Inc. 500 Nickerson Road Marlborough, MA 01752-4695 +1-617-520-8400 |
Pageflex Acquisitions, Inc. 500 Nickerson Road Marlborough, MA 01752 +1-617-520-8400 |
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement)
COPIES TO:
| Gregory L. White, Esq. Seyfarth Shaw LLP World Trade Center East Two Seaport Lane, Suite 300 Boston, MA 02210-2028 +1-617-946-4853 |
Janet Levy-Pahima, Adv. Herzog, Fox & Neeman Asia House 4 Weizmann Street Tel Aviv, Israel 6423904 +972-3-692-2020 |
This statement is filed in connection with (check the appropriate box):
| a. |
x | The filing of solicitation materials or an information statement subject to Regulation 14A (Sections 240.14a-1 through 240.14b-2), Regulation 14C (Sections 240.14c-1 through 240.14c-101) or Rule 13e-3(c) (§240.13e-3(c)) under the Securities Exchange Act of 1934. | ||
| b. |
¨ | The filing of a registration statement under the Securities Act of 1933. | ||
| c. |
¨ | A tender offer. | ||
| d. |
¨ | None of the above. | ||
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: x
Check the following box if the filing is a final amendment reporting the results of the transaction: ¨
Calculation of Filing Fee
| Transaction valuation* | Amount of filing fee* | |
| US$982,946.42 |
US$134.07 |
| * | Estimated for purposes of calculating the amount of the filing fee only. The calculation assumes the purchase of all outstanding common stock, par value US$0.01 per share (“Common Stock”), of Marlborough Software Development Holdings, Inc., a corporation organized under the laws of the State of Delaware (“MSDH” or the “Company”), other than Common Stock owned by Pageflex Acquisitions, Inc., a corporation organized under the laws of the State of Delaware (“Merger SPV”), or MSDH and any of their respective subsidiaries, at a purchase price of US$0.091 per share of Common Stock, without interest and subject to any applicable withholding tax. As of August 20, 2013, there were 10,801,609 Common Stock outstanding, none of which are owned by Merger SPV, MSDH or any of their respective subsidiaries. As a result, this calculation assumes the purchase of 10,801,609 Common Stock at US$0.091 per share (the “Merger Consideration”). The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for fiscal year 2013 issued by the Securities and Exchange Commission on August 31, 2012, by multiplying 0.0001364 by the Merger Consideration. The filing fee was paid with the initial filing of this Schedule 13E-3 on September 13, 2013. |
| x | Check the box if any part of the fee is offset as provided by Section 240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
Amount Previously Paid: $134.07
Form or Registration No.: Schedule 13E-3 - Rule 13e-3 Transaction Statement
Filing Party: Marlborough Software Development Holdings, Inc.
Date Filed: September 13, 2013
EXPLANATORY NOTE
This Amendment No. 1 amends and restates Item 16 and the Exhibit Index of the Rule 13e-3 Transaction Statement on Schedule 13E-3 (the “Schedule”) filed with the Securities and Exchange Commission on September 13, 2013. The purposes of this amendment are to correct the references to Exhibits (d)(ii) and (d)(iii), add references to Exhibits (d)(iv) and (d)(v) and to attach Exhibits (d)(iv) and (d)(v), which are filed herewith. The remainder of the Schedule is unchanged.
Item 16. Exhibits.
Item 16 of the Schedule is hereby amended and restated in its entirety as follows:
Regulation M-A Item 1016
| Exhibit |
Description | |
| (a)(3)(i) | Preliminary Proxy Statement of Marlborough Software Development Holdings, Inc. (incorporated by reference to Schedule 14A filed with the Securities and Exchange Commission on September 13, 2013) | |
| (d)(i) | Agreement and Plan of Merger dated August 20, 2013, by and among MSDH and Merger SPV (included as Annex A of the Preliminary Proxy Statement filed herewith as Exhibit (a)(3)(i)). | |
| (d)(ii) | Voting Agreement dated August 20, 2013 between MSDH, Merger SPV and Altshuler Shaham Provident Funds and Pension Ltd. (filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 20, 2013 and incorporated herein by reference). | |
| (d)(iii) | Voting Agreement dated August 20, 2013 between MSDH, Merger SPV and Amos Kaminski (filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 20, 2013 and incorporated herein by reference). | |
| (d)(iv) | Letter agreement dated August 18, 2013 between Merger SPV and Altshuler Shaham Provident Funds and Pension Ltd. | |
| (d)(v) | Letter agreement dated August 18, 2013 between Merger SPV and Amos Kaminski. | |
Exhibit Index
The Exhibits Index to the Schedule is hereby amended and restated in its entirety as follows:
| Exhibit |
Description | |
| (a)(3)(i) | Preliminary Proxy Statement of Marlborough Software Development Holdings, Inc. (incorporated by reference to Schedule 14A filed with the Securities and Exchange Commission on September 13, 2013) | |
| (d)(i) | Agreement and Plan of Merger dated August 20, 2013, by and among MSDH and Merger SPV (included as Annex A of the Preliminary Proxy Statement filed herewith as Exhibit (a)(3)(i)). | |
| (d)(ii) | Voting Agreement dated August 20, 2013 between MSDH, Merger SPV and Altshuler Shaham Provident Funds and Pension Ltd. (filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 20, 2013 and incorporated herein by reference). | |
| (d)(iii) | Voting Agreement dated August 20, 2013 between MSDH, Merger SPV and Amos Kaminski (filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on August 20, 2013 and incorporated herein by reference). | |
| (d)(iv) | Letter agreement dated August 18, 2013 between Merger SPV and Altshuler Shaham Provident Funds and Pension Ltd. | |
| (d)(v) | Letter agreement dated August 18, 2013 between Merger SPV and Amos Kaminski. | |
Exhibit (d)(iv)
August 18, 2013
Altshuler Shaham Provident Funds and Pension Ltd
19A Habarzel St,
Ramat Hahayal,
Tel Aviv, Israel
Att: Mr. Ran Shaham, CEO
Dear Ran,
Re: Amendment to terms of Warrants / Preferred Stock
It is our intention that on or about the date hereof, Pageflex Acquisitions, Inc. (the “Company”) and Marlborough Software Development Holdings, Inc. (“MSDH”) will enter into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which the Company shall be merged with and into MSDH (the “Merger”) such that, following the Merger, the separate corporate existence of the Company shall cease, MSDH shall continue as the surviving corporation in the Merger (“Pageflex, Inc. (formerly known as MSDH)”) and each share of common stock of the Company held prior to the closing of the Merger will be converted into common stock of Pageflex, Inc. (formerly known as MSDH). In connection with the Merger, the 6.5% Series A Redeemable Preferred Stock of MSDH held by you will remain outstanding and not be exchanged, and concurrently with execution of this letter agreement you are entering into a Voting Agreement and Agreement Concerning Preferred Stock in the form attached hereto as Exhibit A (the “Voting Agreement”).
In connection with the Merger and in consideration for entering into the Voting Agreement, we propose that:
| (i) | the Warrant to Purchase Common Stock dated as of October 10, 2012, issued by MSDH in favor of Altshuler Shaham Provident Funds and Pension Ltd (“Altshuler”) in respect of 1,492,535 shares of common stock of MSDH at an exercise price of $0.67 (the “Warrant”), be amended by an amendment agreement, substantially in the form attached hereto as Exhibit B, pursuant to which the Warrant in favor of Altshuler shall be in respect of 3,999,994 shares of common stock of Pageflex, Inc. (formerly known as MSDH) at an exercise price of $0.25; and |
| (ii) | the Certificate of Designation of the 6.5% Series A Redeemable Preferred Stock of MSDH be amended by a certificate of amendment, substantially in the form attached hereto as Exhibit C, pursuant to which (A) dividends shall be due on an annual basis, payable following the end of each calendar year (rather than at the end of the five (5) year period) provided that such dividends do not exceed an aggregate amount of 15% of profits from such calendar year, and provided that a deficit in distribution of dividends in any given year will be carried forward to subsequent years until fully paid, and (B) the definition of “Liquidation Event” will exclude the Merger. |
Subject to closing of the Merger, Pageflex, Inc. (formerly known as MSDH) and the initial directors of which will be the directors of the Company at the closing of the Merger, will consummate the abovementioned changes immediately after the closing.
If the Merger Agreement is not executed within 14 days of the date hereof, this letter agreement (and any agreement entered into between us thereunder) shall be null and void.
Please confirm that the above correctly reflects our understanding and agreement with respect to the foregoing matters by signing the enclosed copy of this letter and returning such copy to the Company. If you have any questions concerning the foregoing please contact the undersigned.
| Sincerely yours, |
| /s/ Pinhas Romik |
| Pinhas Romik |
| President, Pageflex Acquisitions, Inc. |
| Agreed and accepted on behalf of Altshuler Shaham Provident Funds and Pension Ltd | ||
| Signature: |
/s/ Yoni Ophir | |
| By: |
Yoni Ophir | |
| Title: |
Credit Officer | |
| Date: |
August 20, 2013 | |
| Signature: |
/s/ Yair Levinstein | |
| By: |
Yair Levinstein | |
| Title: |
CEO | |
| Date: |
August 20, 2013 | |
(Signature page to Side_Letter_Altshuler_-_Pageflex_Acquisitions-18-August-2013)
Exhibit (d)(v)
August 18, 2013
Amos Kaminski
315 68th St., New York, NY 10021-5692
USA
Dear Amos,
Re: Amendment to terms of Warrants / Preferred Stock
It is our intention that on or about the date hereof, Pageflex Acquisitions, Inc. (the “Company”) and Marlborough Software Development Holdings, Inc. (“MSDH”) will enter into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which the Company shall be merged with and into MSDH (the “Merger”) such that, following the Merger, the separate corporate existence of the Company shall cease, MSDH shall continue as the surviving corporation in the Merger (“Pageflex, Inc. (formerly known as MSDH)”) and each share of common stock of the Company held prior to the closing of the Merger will be converted into common stock of Pageflex, Inc. (formerly known as MSDH). In connection with the Merger, the 6.5% Series A Redeemable Preferred Stock of MSDH held by you will remain outstanding and not be exchanged, and concurrently with execution of this letter agreement you are entering into a Voting Agreement and Agreement Concerning Preferred Stock in the form attached hereto as Exhibit A (the “Voting Agreement”).
In connection with the Merger and in consideration for entering into the Voting Agreement, we propose that:
| (i) | the Warrant to Purchase Common Stock dated as of October 10, 2012, issued by MSDH in your favor in respect of 1,492,535 shares of common stock of MSDH at an exercise price of $0.67 (the “Warrant”), be amended by an amendment agreement, substantially in the form attached hereto as Exhibit B, pursuant to which the Warrant in your favor shall be in respect of 3,999,994 shares of common stock of Pageflex, Inc. (formerly known as MSDH) at an exercise price of $0.25; and |
| (ii) | the Certificate of Designation of the 6.5% Series A Redeemable Preferred Stock of MSDH be amended by a certificate of amendment, substantially in the form attached hereto as Exhibit C, pursuant to which (A) dividends shall be due on an annual basis, payable following the end of each calendar year (rather than at the end of the five (5) year period) provided that such dividends do not exceed an aggregate amount of 15% of profits from such calendar year, and provided that a deficit in distribution of dividends in any given year will be carried forward to subsequent years until fully paid, and (B) the definition of “Liquidation Event” will exclude the Merger. |
Subject to closing of the Merger, Pageflex, Inc. (formerly known as MSDH) and the initial directors of which will be the directors of the Company at the closing of the Merger, will consummate the abovementioned changes immediately after the closing.
If the Merger Agreement is not executed within 14 days of the date hereof, this letter agreement (and any agreement entered into between us thereunder) shall be null and void.
Please confirm that the above correctly reflects our understanding and agreement with respect to the foregoing matters by signing the enclosed copy of this letter and returning such copy to the Company. If you have any questions concerning the foregoing please contact the undersigned.
Sincerely yours,
| /s/ Pinhas Romik |
| Pinhas Romik |
| President, Pageflex Acquisitions, Inc. |
| Agreed and accepted by Amos Kaminski: | ||
| Signature: | /s/ Amos Kaminski | |
| Date: | August 19, 2013 | |
(Signature page to Side_Letter_Kaminski_-_Pageflex_Acquisitions-18-August-2013)