Nms Communications Corp - Current report filing (8-K)
September 12 2008 - 6:43AM
Edgar (US Regulatory)
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):
September 11, 2008
NMS
Communications Corporation
(Exact Name of
Registrant as Specified in its Charter)
Delaware
(State of Incorporation or Organization)
0-23282
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04-2814586
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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100
Crossing Boulevard, Framingham, Massachusetts
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01702
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(Address of Principal Executive Offices)
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(Zip Code)
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(508)
271-1000
(Registrants telephone number, including area code)
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:
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 September 12, 2008, NMS Communications Corporation (NMS) entered into an Asset Purchase Agreement (the Purchase Agreement) with Dialogic Corporation (Buyer) to sell the NMS Communications Platforms business (the Business) to Buyer. Pursuant to the terms of the Purchase Agreement, Buyer has agreed to acquire certain assets and assume certain liabilities related to the Business as set forth in the Purchase Agreement (collectively, the Transaction). In addition, subject to the terms and conditions of the Purchase Agreement, Buyer has agreed to offer employment on or before the closing of the Transaction (the Closing) to existing NMS employees that are primarily engaged in the business of the Business. There are no material relationships among NMS and Buyer or any of their respective affiliates, other than with respect to the Purchase Agreement and the related ancillary agreements.
Pursuant to the terms of the Purchase Agreement and subject to the customary adjustments provided for therein, at the Closing, NMS will be paid a $28 million cash payment, $2.8 million of which will be funded into an escrow account to settle certain claims for indemnification which can be made by Buyer following the Closing.
The Purchase Agreement may be terminated by either Buyer or NMS if the Closing has not occurred by December 31, 2008 or February 28, 2009, depending on whether the Securities and Exchange Commission (the SEC) decides to review the proxy statement sent to NMSs stockholders in connection with the Transaction, or upon the occurrence of certain customary events as set forth in the Purchase Agreement. In addition, if the Purchase Agreement is terminated under certain circumstances, including a determination by NMSs board of directors to accept an acquisition proposal it deems superior to the Transaction, NMS has agreed to pay Buyer a termination fee of $1.25 million. The Closing is subject to closing conditions, including, but not limited to, approval of the Transaction by NMSs stockholders and certain other customary closing conditions.
The
foregoing description of the Transaction does not purport to be a complete
statement of the parties rights under the Purchase Agreement and is qualified
in its entirety by reference to the full text of the Purchase Agreement, a copy
of which is filed with this Current Report on Form 8-K as Exhibit 2.1
and incorporated by reference herein.
On September 12, 2008, NMS
issued a press release announcing the signing of the Purchase Agreement. This
press release is filed as Exhibit 99.1 to this Current Report on Form 8-K
and is incorporated herein by reference.
Important Additional Information Will Be Filed With The SEC
NMS
plans to file with
the
SEC and mail to its stockholders a
proxy statement in connection with the proposed sale of the NMS Communications
Platforms business and the other corporate matters described therein. The proxy statement will contain important
information about NMS, Dialogic, the proposed sale of the NMS Communications
Platforms business and the other corporate matters described therein. Investors and security holders are urged to
read the proxy statement carefully when it is available before making any
voting or investment decision with respect to the proposed sale of the NMS
Communications Platforms business and the other corporate matters described
therein.
Investors
and security holders will be able to obtain free copies of the proxy statement
and other documents filed with the SEC by NMS through the web site maintained
by the SEC at www.sec.gov.
In
addition, investors and security holders will be able to obtain free copies of
the proxy statement from NMS by contacting Karen Cameron at 100 Crossing
Boulevard, Framingham, MA, 01702 or 508-271-1000.
NMS, Dialogic, and their
respective directors and executive officers, may be deemed to be participants
in the solicitation of proxies with respect to the proposed sale of the NMS
Communications Platforms business and the other corporate matters set forth in
the proxy statement. Information
regarding NMSs directors and executive officers and their ownership of NMS
shares is contained in NMSs Annual Report on Form 10-K for the year ended
December 31, 2007 and its proxy statement for NMSs Annual Meeting of
Stockholders which was filed with the SEC on April 22, 2008
, and is supplemented by other public
filings made, and to be made, with the SEC. A more complete description will
be available in the proxy statement filed in connection with the proposed sale
of the NMS Communications Platforms business.
Investors and security holders may obtain additional information
regarding the direct and indirect interests of NMS, Dialogic, and their respective directors and executive officers with respect to the proposed sale of
the NMS Communications Platforms business by reading the proxy statement
and other filings referred to above.
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION
OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS.
Subject to and immediately following the Closing, Robert
P. Schechter, NMSs Chief Executive Officer and Chairman of the Board of
Directors, will be terminated as Chief Executive Officer. Mr. Schechter will continue in his role
as Chairman of the Board of Directors of NMS.
In addition, on September 11, 2008, the Board
appointed Joel Hughes to serve as NMSs Chief Executive Officer, subject to and
immediately following the Closing and Mr. Schechters termination, until
his earlier resignation or removal.
Since December 2007, Mr. Hughes, who is 44, has served as the
President of NMSs LiveWire Mobile business. Mr. Hughes was the Senior
Vice President and General Manager of NMSs former Mobile Applications business.
Mr. Hughes joined NMS early in 2006 when NMS acquired Openera
Technologies, an IMS handset applications provider, where he was President and
Chief Executive Officer. Prior to Openera, Mr. Hughes founded SnowShore
Networks, a pioneering IP media server company, and served as President and
Chief Executive Officer from 2000 to 2004 before it was acquired by Brooktrout
in 2004.
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Subject to and immediately following the Closing, Herbert
Shumway, NMSs Senior Vice President of Finance and Operations, Chief Financial
Officer and Treasurer, will be terminated as Senior Vice President of Finance
and Operations, Chief Financial Officer and Treasurer.
In addition, on September 11, 2008, the Board
appointed Todd D. Donahue to serve as NMSs Senior Vice President of Finance
and Operations, Chief Financial Officer and Treasurer, subject to and
immediately following the Closing and Mr. Shumways termination, until his
earlier resignation or removal. Since February 2007,
Mr. Donahue, who is 34, has served as NMSs Vice President of Finance,
Chief Accounting Officer and Controller. Prior to joining NMS, Mr. Donahue
served in senior finance and operations roles at Aspen Technology, Inc., a
global software and solutions provider, including as Vice President of Product
Operations and Vice President of Finance. His prior experience includes senior
finance positions at Corechange, Inc., and Ardent Software, Inc.,
which was acquired by Informix. Mr. Donahue began his career at Deloitte
and Touche LLP in assurance and advisory services.
Safe
Harbor for Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking
statements within the meaning of the Private Securities Litigation Reform Act
of 1995, including forward-looking statements about the proposed sale of the
NMS Communications Platforms business to Dialogic, proposed management changes
and the anticipated election of a new director.
These statements are based on managements expectations as of the date
of this document and are subject to uncertainty and changes in circumstances.
Actual results may differ materially from these expectations due to risks and
uncertainties including, but not limited to, assurance that the proposed sale
of the NMS Communications Platforms business to Dialogic will be approved by
the NMSs stockholders or close as contemplated, uncertainty in communications
spending, the implementation of NMSs strategy to focus exclusively on the
LiveWire Mobile business, the implementation of NMSs strategic repositioning
and market acceptance of its managed services strategy, quarterly fluctuations
in financial results, NMS s ability to exploit fully the value of its
technology and its strategic partnerships and alliances, the availability of
products from NMSs contract manufacturer and product component vendors and
other risks. These and other risks are
detailed from time to time in NMSs filings with the SEC, including NMSs
annual report on Form 10-K for the year ended December 31, 2007. In addition, while management may elect to
update forward-looking statements at some point in the future, management
specifically disclaims any obligation to do so, even if its estimates
change. Any reference to our website in
this press release is not intended to incorporate the contents thereof into
this press release or any other public announcement.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) EXHIBITS.
Exhibit
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Number
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Title
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2.1*
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Asset Purchase Agreement, by and between NMS
Communications Corporation and Dialogic Corporation, dated as of
September 12, 2008.
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99.1
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Press release issued by NMS Communications
Corporation on September 12, 2008.
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*Exhibits omitted
pursuant to Item 601(b)(2) of Regulation S-K. NMS agrees to furnish
a supplemental copy of any omitted exhibit to the SEC upon request.
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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.
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NMS COMMUNICATIONS CORPORATION
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September 12, 2008
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By:
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/s/ ROBERT P. SCHECHTER
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Name:
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Robert P. Schechter
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Title:
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Chief Executive Officer and
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Chairman of the Board of Directors
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EXHIBIT
INDEX
Exhibit
Number
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Description
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2.1*
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Asset Purchase Agreement, by and between NMS
Communications Corporation and Dialogic Corporation, dated as of
September 12, 2008.
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99.1
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Press release issued by NMS Communications
Corporation on September 12, 2008.
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*Exhibits omitted pursuant to Item 601(b)(2) of
Regulation S-K. NMS agrees to furnish a supplemental copy of any omitted
exhibit to the SEC upon request.
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