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| ENLV > SEC Filings for ENLV > Form 8-K on 3-Oct-2008 | All Recent SEC Filings |
3-Oct-2008
Completion of Acquisition or Disposition of Assets, Notice of
On October 2, 2008, Enliven Marketing Technologies Corporation, a Delaware corporation (the "Company"), consummated the merger (the "Merger") of DG Acquisition Corp. VI. ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of DG FastChannel, Inc., a Delaware corporation (the "Parent"), with and into the Company, in accordance with the Agreement and Plan of Merger, dated as of May 7, 2008, as amended by Amendment No. 1, dated as of September 4, 2008, by and among the Company, the Parent and Merger Sub (the "Merger Agreement"). Pursuant to the terms of the Merger Agreement, each share of Company common stock, $.001 par value per share (the "Common Stock"), issued and outstanding immediately prior to the effective time of the Merger, was converted into the right to receive 0.033 of a share of Parent common stock, $.001 par value per share, and cash in lieu of fractional shares, as applicable (the "Merger Consideration"). Upon the closing of the Merger, the Company became a wholly owned subsidiary of the Parent.
The description of the Merger Agreement and the transactions contemplated thereby, including the Merger, contained in this Item 2.01 do not purport to be complete and are qualified in their entirety by reference to the Merger Agreement, which is attached as Exhibits 2.1 and 2.2 to this Current Report on Form 8-K and is incorporated herein by reference.
As a result of the merger, the Company no longer fulfills the numerical listing requirements of the NASDAQ Stock Market ("NASDAQ"). On October 2, 2008, in connection with the closing of the Merger, the Company notified NASDAQ of the closing date of the Merger and requested that NASDAQ file an application on Form 25 with the Securities and Exchange Commission (the "SEC") to remove the Common Stock from listing on the NASDAQ and registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In addition, the Company intends to file with the SEC a certification on Form 15 under the Exchange Act requesting the Common Stock be deregistered and that the Company's reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.
Upon the effective time of the Merger on October 2, 2008, a change in control of the Company occurred pursuant to which: (1) each issued and outstanding share of Common Stock was converted into the right to receive the Merger Consideration and (ii) Merger Sub merged with and into the Company with the Company being the surviving corporation and a wholly owned subsidiary of the Parent. The description of the Merger Agreement in Item 2.01 is incorporated by reference in answer to this Item 5.01.
Pursuant to the terms of the Merger Agreement, on the closing date of the Merger, the Company delivered to the Parent duly signed resignations, effective as of the effective time of the Merger, for each member of the Company's board of directors. Pursuant to the terms of the Merger Agreement, upon the effective time of the Merger, Scott K. Ginsburg and Omar A. Choucair became the directors of the Company.
Effective upon filing the certificate of merger, on October 2, 2008, the Company's existing certificate of incorporation was amended and restated. The Company's amended and restated certificate of incorporation, which is filed as Exhibit 3.1 hereto, is incorporated herein by reference. In addition, upon the effective time of the Merger, the Company's existing bylaws was amended and restated. The Company's amended and restated bylaws, which is filed as Exhibit 3.2 hereto, is incorporated herein by reference.
On October 2, 2008, the Company and the Parent issued a joint press release announcing the consummation of the Merger pursuant to the terms and conditions of the Merger Agreement. A copy of such press release is filed as Exhibit 99.1 hereto and incorporated herein by reference.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits.
2.1 Agreement and Plan of Merger, dated as of May 7, 2008, by and among Enliven Marketing Technologies Corporation, DG Acquisition Corp. VI., and DG FastChannel, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 12, 2008).
2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as of September 4, 2008, by and among Enliven Marketing Technologies Corporation, DG Acquisition Corp. VI. and DG FastChannel, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K, filed with the Securities and Exchange Commission on September 5, 2008).
3.1 Certificate of Incorporation of Enliven Marketing Technologies Corporation.
3.2 Amended and Restated Bylaws of Enliven Marketing Technologies Corporation.
99.1 Press Release, dated October 2, 2008.
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