UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): November 1, 2010
NETEZZA CORPORATION
(Exact Name of Registrant as Specified in Charter)
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Delaware
(State or Other Jurisdiction
of Incorporation)
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001-33445
(Commission
File Number)
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04-3527320
(IRS Employer
Identification No.)
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26 Forest Street
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Marlborough, Massachusetts
(Address of Principal Executive Offices)
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01752
(Zip Code)
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Registrants telephone number, including area code: (508) 382-8200
(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 (
see
General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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On or about October 12, 2010, Netezza Corporation (Netezza) mailed a definitive proxy
statement relating to a special meeting of stockholders of Netezza to be held at the offices of
Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts, on November 10,
2010, beginning at 10:00 a.m., local time. At the special meeting, Netezza stockholders will be
asked to consider and vote upon a proposal to adopt the Agreement and Plan of Merger, dated as of
September 19, 2010, by and among International Business Machines Corporation (IBM), Onyx
Acquisition Corp. (Onyx), a wholly owned subsidiary of IBM, and Netezza, as such agreement may be
amended from time to time. If the merger agreement is adopted and the merger described in the
merger agreement is completed, Netezza will become a wholly owned subsidiary of IBM, and Netezza
stockholders will be entitled to receive $27.00 in cash, without interest and less any applicable
withholding taxes, for each share of Netezza common stock owned by them as of the date of the
merger.
As disclosed in the definitive proxy statement, and following the announcement of the merger
agreement, Netezza and its directors were named as defendants in four putative class actions
brought by Netezza stockholders. The first, which names IBM as an additional defendant, was filed
on September 21, 2010 in the Court of Chancery of the State of Delaware, and is captioned
Anthony
Kolton v. Netezza Corporation, et al
., C.A. No. 5836. The second, which names Netezza, certain of
its directors, certain of its officers, IBM and Onyx as defendants, was filed on September 22, 2010
in the Middlesex Superior Court of the Commonwealth of Massachusetts, and is captioned
Adam Walker
v. Netezza Corporation, et al
., C.A. No. 10-3583. The third, which names Netezza, its directors
and a former director as defendants, is captioned O
klahoma Law Enforcement Retirement System v.
Netezza Corporation, et al
., C.A. No., 1:10 cv 11644-JLT, and was filed on September 27, 2010 in
the United States District Court of the District of Massachusetts. The fourth, which names
Netezza, its directors, IBM and Onyx as defendants, was filed on September 29, 2010 in the Court of
Chancery of the State of Delaware, and is captioned
Erste-Sparinvest KAG v. Netezza Corporation, et
al
., C.A. No. 5858.
The four actions, purportedly brought on behalf of a class of Netezza stockholders, generally
allege that Netezzas directors purportedly breached their fiduciary duties in connection with the
proposed merger by failing to maximize shareholder value and obtain the best financial terms. On
October 5, 2010, the
Erste-Sparinvest KAG
Delaware plaintiff amended its complaint to further
allege that Netezza failed to disclose material information concerning the proposed merger. All of
the complaints include requests for declaratory, injunctive and other equitable relief, including
to enjoin Netezza and IBM from consummating the merger, in addition to fees and costs.
On October 1, 2010, Netezza filed a motion to stay the proceedings in the Massachusetts
federal court
Oklahoma Law Enforcement Retirement System
matter pending final judgment of the
matters in the Court of Chancery of the State of Delaware. On October 15, 2010, the plaintiff in
the Massachusetts federal court action advised the Court that it does not oppose Netezzas motion
to stay.
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On October 4, 2010, both Netezza and IBM served motions to stay the proceedings in the
Massachusetts state court
Walker
matter pending final judgment of the matters in the Court of
Chancery of the State of Delaware. On October 22, 2010, Netezza filed its motion to stay with the
Court, and notified the Court that no opposition to the motion to stay had been received by Netezza
within the time allowed by the applicable rules for the Massachusetts state court plaintiff to
serve his opposition. On November 1, 2010, IBM filed its motion to stay with the Court, and notified the Court that
no opposition to the motion to stay had been received by IBM within the time allowed by the
applicable rules for the Massachusetts state court plaintiff to serve his opposition.
On October 6, 2010, the
Erste-Sparinvest KAG
Delaware plaintiff filed a motion for expedited
proceedings and a motion for preliminary injunction. On October 8, 2010, the plaintiffs in the two
Delaware actions submitted to the Court a proposed order consolidating for all purposes their two
actions in the Court of Chancery of the State of Delaware (and advised the Court that the
defendants do not oppose consolidation). The Court consolidated these actions by Order dated
October 18, 2010. The consolidated action is captioned
In re Netezza Corporation Shareholder
Litigation
, Consolidated C.A. No. 5858-VCS (Consolidated Delaware Action), and the amended
complaint filed by the
Erste-Sparinvest KAG
plaintiff is the operative complaint in the
Consolidated Delaware Action.
In an effort to minimize the cost and expense of litigating such lawsuits, on October 25,
2010, Netezza, the other defendants and the plaintiffs reached an agreement in principle to settle
the Consolidated Delaware Action. Pursuant to the terms of the agreement in principle, reflected
in a memorandum of understanding dated October 29, 2010, the parties agreed that Netezza would make certain additional
disclosures to its stockholders beyond the information provided in the definitive proxy statement.
Those additional disclosures are set forth below under the heading ADDITIONAL DISCLOSURES. The
settlement contemplated by the agreement in principle will not change any of the terms of the
merger or the merger agreement.
The settlement contemplated by the agreement in principle is subject to documentation, court
approval, completion of satisfactory confirmatory discovery by plaintiffs counsel, dismissal of
the Consolidated Delaware Action with prejudice, and consummation of the merger. Upon Court
approval, the settlement contemplated by the agreement in principle will resolve all of the claims
that were or could have been brought in the Consolidated Delaware Action, including all claims
relating to the merger, the merger agreement and any disclosure made in connection therewith.
Netezza and the other defendants have vigorously denied, and continue to vigorously deny, any
wrongdoing or liability with respect to the facts and claims asserted, or which could have been
asserted, in the lawsuits described above, including that they have committed any violations of law
or breach of fiduciary duty, that they have acted improperly in any way, or that they have any
liability or owe any damages of any kind to the plaintiffs or to the purported class, and
specifically deny that any further supplemental disclosure is required under any applicable rule,
statute, regulation or law or that the Netezza directors failed to maximize stockholder value by
entering into the merger agreement with IBM and Onyx. The settlement contemplated by the agreement
in principle is not, and should not be construed as, an admission of wrongdoing or liability by any
defendant. However, to avoid the risk of delaying or otherwise imperiling the merger, and to
provide additional information to Netezzas stockholders at a time and in a manner that would not
cause any delay of the merger, Netezza and its directors agreed to the settlement described above.
The parties considered it desirable that the action be settled to avoid
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the substantial burden, expense, risk, inconvenience and distraction of continued litigation
and to fully and finally resolve the matter.
The following information supplements the definitive proxy statement and should be read in
conjunction with the definitive proxy statement. All page references in the information below shall
refer to those contained in the definitive proxy statement, and terms used below shall have the
meanings set forth in the definitive proxy statement.
ADDITIONAL DISCLOSURES
Background of the Merger
In addition to the information disclosed on page 18 of the proxy statement regarding the July
16, 2010 meeting of the special committee formed by Netezzas board of directors to facilitate the
evaluation and consideration of a possible strategic transaction, which involved a discussion of
potential acquirers, including a potential acquisition by IBM, Netezza notes that the 12 potential
strategic acquirers (including IBM) identified by Qatalyst and reviewed by the special committee
and Qatalyst represented a broad range of companies, including companies that are primarily
software companies, consulting or services companies, computer hardware companies, data storage and
warehousing companies, data integration companies, and companies whose product offerings include
combined hardware, software and services solutions. Based on preliminary discussions with members
of Netezzas board and management and its own knowledge of the industry, Qatalyst had classified
each of the 12 potential acquirers as having a higher, medium, or lower likelihood of interest in a
potential strategic transaction with Netezza.
Given the nature of Netezzas business, the special committee believed that companies that
already had in place the sales force and distribution channels needed to market and support a
combined hardware and software product would best fit with Netezzas product offering and be the
most likely to be interested in a potential strategic transaction with Netezza and thus the most
likely to offer maximum value for Netezza. The special committee decided to recommend to the
board, and thereafter, following discussion, the board instructed Qatalyst to approach three
companies Company A, Company B and Company C that (in addition to IBM) best fit this profile.
These three companies and IBM were classified as having a higher or medium likelihood of interest
in a potential strategic transaction with Netezza. Both the special committee and the board
decided not to approach those companies among the twelve candidates that are primarily software,
consulting or services companies. Although Qatalyst had classified another company as having a
medium likelihood of interest, in the special committees and boards judgment, that company was
unlikely to be interested in a potential transaction with Netezza because it is a relatively new
player in the data analytics market and its product portfolio is still insufficiently developed to
make its acquisition of Netezza a good strategic fit. Similarly, the special committee and board
decided not to approach another company who is a Netezza competitor with a product offering similar
to Netezzas. The special committee and the board also decided that another company that had
recently announced the acquisition of one of Netezzas competitors would not, in their judgment, be
a likely potential acquirer.
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CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
Any statements in this Current Report on Form 8-K about future expectations, plans and prospects
for Netezza, including statements about the expected timetable for consummation of the proposed
transaction among IBM, Onyx and Netezza, and any other statements about IBM, Onyx and Netezza, or
about Netezzas future expectations, beliefs, goals, plans or prospects, constitute forward-looking
statements within the meaning of Section 21E of the Securities Exchange Act of 1934. Any
statements that are not statements of historical fact (including statements containing the words
believes, plans, anticipates, expects, estimates and similar expressions) should also be
considered forward-looking statements. A number of important factors could cause actual results or
events to differ materially from those indicated by such forward-looking statements, including the
parties ability to consummate the transaction; the conditions to the completion of the
transaction, including the receipt of Netezza stockholder approval; the regulatory approvals or
court approvals required for the transaction may not be obtained on the terms expected or on the
anticipated schedule; the parties ability to meet expectations regarding the timing, completion
and accounting and tax treatments of the transaction; the possibility that the parties may be
unable to achieve expected synergies and operating efficiencies in the arrangement within the
expected time-frames or at all and to successfully integrate Netezzas operations into those of IBM
or that such integration may be more difficult, time-consuming or costly than expected; operating
costs, customer loss and business disruption (including, without limitation, difficulties in
maintaining relationships with employees, customers, clients or suppliers) may be greater than
expected following the transaction; the retention of certain key employees of Netezza may be
difficult; IBM and Netezza are subject to intense competition and increased competition is expected
in the future; Netezzas dependence on a single product family for nearly all of its revenue;
fluctuations in foreign currencies could result in transaction losses and increased expenses; the
volatility of the international marketplace; and the other factors described in IBMs Annual Report
on Form 10-K for the fiscal year ended December 31, 2009 and in its most recent quarterly report
filed with the Securities and Exchange Commission (the
SEC), and Netezzas Annual Report on Form 10-K for the fiscal year ended January 31,
2010 and in its most recent quarterly report filed with the SEC. IBM and Netezza assume no
obligation to update the information in this Current Report on Form 8-K, except as otherwise
required by law. Readers are cautioned not to place undue reliance on these forward-looking
statements that speak only as of the date hereof.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
This report may be deemed to be solicitation material in respect of the proposed acquisition of
Netezza by IBM. In connection with the proposed acquisition, Netezza has filed a proxy
statement in preliminary and definitive form with the SEC. STOCKHOLDERS OF NETEZZA ARE URGED TO
READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING NETEZZAS DEFINITIVE PROXY STATEMENT,
BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security
holders may obtain the documents free of charge at the SECs web site, http://www.sec.gov.
Documents are also available for free from Netezza by contacting Netezzas Investor Relations at
508-382-8200 or ir@netezza.com.
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Participants in Solicitation
IBM and its directors and executive officers, and Netezza and its directors and executive officers,
may be deemed to be participants in the solicitation of proxies from the holders of Netezza common
stock in respect of the proposed transaction. Information about the directors and executive
officers of IBM is set forth in the proxy statement for IBMs 2010 Annual Meeting of Stockholders,
which was filed with the SEC on March 8, 2010. Information about the directors and executive
officers of Netezza is set forth in the proxy statement for Netezzas 2010 Annual Meeting of
Stockholders, which was filed with the SEC on May 7, 2010. As of September 27, 2010, Netezzas
directors and executive officers beneficially owned approximately 3,851,497 shares of Netezza
common stock, or 5.9% of the outstanding shares of Netezza common stock as of such date. In
addition, certain of Netezzas executive officers have entered into employment or transition
arrangements with IBM, which will become effective as of the closing of the merger. Investors may
obtain additional information regarding the interest of such participants by reading the definitive
proxy statement regarding the acquisition filed with the SEC on October 12, 2010.
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SIGNATURE
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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NETEZZA CORPORATION
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Date: November 1, 2010
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By:
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/s/ Patrick J. Scannell, Jr.
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Patrick J. Scannell, Jr.
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Senior Vice President and
Chief Financial Officer
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Netezza Common Stock (NYSE:NZ)
過去 株価チャート
から 10 2024 まで 11 2024
Netezza Common Stock (NYSE:NZ)
過去 株価チャート
から 11 2023 まで 11 2024