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| ENLV > SEC Filings for ENLV > Form 8-K on 5-Sep-2008 | All Recent SEC Filings |
5-Sep-2008
Entry into a Material Definitive Agreement, Regulation FD Dis
On September 4, 2008, Enliven Marketing Technologies Corporation ("Enliven") and DG FastChannel, Inc. ("DG FastChannel") entered into an amendment to the previously announced merger agreement regarding DG FastChannel's previously announced acquisition of Enliven in a stock-for-stock transaction. The revised terms of the definitive agreement values Enliven at approximately $80 million, inclusive of DG FastChannel's planned assumption of approximately $5.0 million of Enliven's debt. Pursuant to the terms of the revised merger agreement, each outstanding share of Enliven common stock will be converted into 0.033 shares (reduced from 0.051 shares) of DG FastChannel common stock. In the aggregate, DG FastChannel expects to issue approximately 2.9 million shares of its common stock (exclusive of shares already owned by DG FastChannel). Upon consummation of the merger, DG FastChannel will have approximately 20.8 million shares of common stock outstanding, with current Enliven shareholders owning approximately 14%, and current DG FastChannel shareholders owning approximately 86% of the combined enterprise.
In addition to the revised exchange ratio of 0.033 shares of DG FastChannel common stock to be issued for each share of Enliven common stock in connection with the merger, the amendment to the merger agreement modifies the provisions of the original merger agreement to provide that:
º •
º a vote of the DG FastChannel stockholders is no longer required as a
condition to the consummation of the merger because the number of
shares of DG FastChannel common stock to be issued in connection with
the merger is, under the revised terms, less than 20% of the number of
shares of DG FastChannel common stock outstanding immediately prior to
such issuance and therefore the Nasdaq rules no longer require
stockholder approval;
º •
º in determining whether a material adverse effect has occurred with
respect to Enliven, any change in Enliven's cash position since May 7,
2008 or any failure or prospective failure of Enliven to achieve
financial projections for Enliven prepared by either Enliven's or DG
FastChannel's management will not be considered;
º •
º a termination fee of $1,538,984, rather than the previously agreed
amount of $3,270,465, will be payable by Enliven to DG FastChannel in
the event the merger agreement is terminated following (i) the failure
to obtain the required vote at a duly held meeting of Enliven
stockholders, but only if an acquisition proposal has been publicly
announced and not expressly and publicly withdrawn prior to the
Enliven special stockholders meeting and within 12 months following
such termination an acquisition of Enliven is consummated; (ii) a
change in the recommendation of the Enliven board of directors that
the Enliven stockholders vote in favor of the transaction; or (iii) a
determination by the Enliven board of directors to accept a proposal
that would be more favorable to Enliven's stockholders;
º •
º DG FastChannel has agreed to reimburse Enliven for certain
merger-related expenses of up to $1,500,000 in the event the merger is
not consummated by October 6, 2008 (subject to extension in certain
events) provided that Enliven has satisfied certain enumerated closing
conditions, unless the agreement has been terminated because Enliven
fails to obtain the required vote at a duly held meeting of Enliven
stockholders or because a material adverse effect has occurred with
respect to Enliven; and
º •
º upon completion of the merger, one current Enliven director, rather
than two Enliven directors, will be elected to the DG FastChannel
board of directors to serve in the class of directors whose term
expires in 2010.
The foregoing summary of the amendment to the merger agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the amendment to the merger agreement furnished herewith as Exhibit 2.1, which is incorporated herein by reference. The amendment to the merger agreement has been attached to
On September 5, 2008, Enliven announced that it had entered into an amendment to the previously announced merger agreement regarding DG FastChannel's acquisition of Enliven. The full text of the press release issued in connection with the announcement is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
In accordance with general instruction B.2 of Form 8-K, the information in this report (including exhibits) that is being furnished pursuant to Item 7.01 of Form 8-K shall not be deemed to be "filed" for the purposes of Section 18 of the Securities Exchange Act, as amended, or otherwise subject to liabilities of that section, nor shall they be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as expressly set forth in such filing. This report will not be deemed an admission as to the materiality of any information in the report that is provided in connection with Regulation FD.
Safe Harbor for Forward-Looking Statements
Statements in this report may contain certain forward-looking statements. All statements included concerning activities, events or developments that Enliven expects, believes or anticipates will or may occur in the future are forward-looking statements. Actual results could differ materially from the results discussed in the forward-looking statements. Forward-looking statements are based on current expectations and projections about future events and involve known and unknown risks, uncertainties and other factors that may cause actual results and performance to be materially different from any future results or performance expressed or implied by forward-looking statements, including the following: the risk that the merger will not close because of a failure to satisfy one or more of the closing conditions; the risk that Enliven's or DG FastChannel's business will have been adversely impacted during the pendency of the merger; the risk that the operations will not be integrated successfully; and the risk that the expected cost savings and other synergies from the transaction may not be fully realized, realized at all or take longer to realize than anticipated. Additional information on these and other risks, uncertainties and factors is included in the Enliven's Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other documents filed with the Securities and Exchange Commission (SEC).
Additional Information
In connection with the proposed merger, DG FastChannel will file an
amendment to the registration statement and DG FastChannel and Enliven will
file a supplement to the proxy statement/prospectus and other related documents
with the SEC. Investors and security holders are urged to read the supplement to
the proxy statement/prospectus when it becomes available as it will contain
important information about the merger and related matters. Investors and
security holders will have access to free copies of the proxy
statement/prospectus (when available) and other documents filed with the SEC by
Enliven and DG FastChannel through the SEC web site at www.sec.gov. The
supplement to the proxy statement/prospectus and related materials may also be
obtained for free (when available) from Enliven by directing a request to:
Enliven Marketing Technologies Corporation Attn: Investor Relations Department,
205 West 39th Street, 16th Floor, New York, NY 10018, telephone 212-201-0800.
(d) Exhibits
2.1 Amendment No. 1 to Agreement and Plan of
Merger, dated as of September 4, 2008, by
and among DG FastChannel, Inc., DG
Acquisition Corp. VI. and Enliven
Marketing Technologies Corporation.
99.1 Press Release dated September 5, 2008.
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