Attached files
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EX-10.2 - PEERLESS SYSTEMS CORP | v195448_ex10-2.htm |
EX-10.1 - PEERLESS SYSTEMS CORP | v195448_ex10-1.htm |
EX-99.1 - PEERLESS SYSTEMS CORP | v195448_ex99-1.htm |
UNITED
STATES
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
August
26, 2010
Date of
Report (Date of earliest event reported)
PEERLESS SYSTEMS
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
(State
of Incorporation)
|
0-21287
(Commission
File Number)
|
95-3732595
(IRS
Employer
Identification
Number)
|
2361
Rosecrans Avenue
El
Segundo, CA 90245
(Address
of principal executive offices) (Zip Code)
(310)
536-0908
(Registrant’s
telephone number, including area code)
N/A
(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:
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
o
|
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))
|
x
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item 1.01. Entry into a Material Definitive
Agreement
Amendment of Bandera
Nomination Agreement
Peerless Systems Corporation (the
“Company”) has entered into an Amended and Restated Nomination Agreement (the
“Amendment”), dated August 26, 2010, with Bandera Partners LLC, Bandera
Master Fund L.P., Bandera Partners Management LLC, Gregory Bylinsky,
and Jefferson Gramm (collectively, “Bandera”). The Amendment amends
and restates the Nomination Agreement, dated May 14, 2009, entered into between
the Company and Bandera (the “Original Agreement”), a copy of which was filed as
Exhibit 10.1 to the Company’s Current Report on Form 8-K dated May 15,
2009.
The
Amendment was executed in connection with the approval by the Company’s Board of
Directors (the “Board”) of a tender offer (the “Offer”) to repurchase up to
13,846,153 shares of its common stock, par value $.001 (the “Common Stock”), at a cash price of $3.25 per
share, as further
described under
Item 8.01 below.
Under the Amendment, Bandera
has agreed to tender in the Offer its 3,599,320 shares of
Common Stock and to exercise all vested options held by Messrs. Gramm and
Bylinsky and tender in the Offer the shares received upon
such exercise.
At the closing of the
Offer (the “Closing”), Mr. Bylinsky will resign
as a director of the Board. If immediately following the Closing
Bandera Parties beneficially own 450,000 or more shares of Common Stock, the
size of the
Board will be reduced to six directors, comprised of current directors Steven M.
Bathgate, Timothy E. Brog, Jefferson Gramm, Jeffrey A. Hammer and Jeffrey S.
Wald, and a new director, Eric Kuby. If immediately following the
Closing Bandera beneficially owns 360,000 or more
shares of Common Stock, but less than 450,000 shares of Common Stock, the Board
will have seven members, including current directors Bathgate, Brog,
Gramm, Hammer, and Wald, and new directors Eric Kuby and Robert Frankfurt.
If immediately following the
Closing the Bandera Parties beneficially own less than 360,000 shares of Common
Stock, Mr. Gramm will resign, and the size of the Board will be
reduced to six directors, including current directors
Bathgate, Brog, Hammer and Wald and new directors
Messrs. Kuby and Frankfurt. Further information regarding Messrs.
Kuby and Frankfurt is included under Item 5.02 below.
Under the Amendment, the
Board may not form an executive committee until the date of the
Company’s 2011 annual meeting of stockholders
without the unanimous approval of the Board.
The foregoing is a summary of the
material terms of the Amendment. Reference should be made to the full
text of the Original Agreement and the Amendment, which is filed herewith as
Exhibit 10.1, for a complete understanding of its terms.
The Company also received a
letter agreement from Edward Ramsden, a director of the Company and
representative of Caburn Capital, LP, that Caburn will tender its 323,672
shares of Common Stock
in the Offer and
that Mr. Ramsden will resign from the Board effective as of the
Closing. A copy of such letter agreement is attached hereto as
Exhibit 99.1.
Item 5.02. Departure of Directors or Principal
Officers; Election of Directors; Appointment of Principal Officers.
(a) As further described under
Item 1.01 above, on August 26, 2010, the Company entered into the Amended
Agreement with Bandera, which provides that Gregory Bylinsky, one of Bandera’s
representatives, will resign from the Board at the Closing of the
Offer. Additionally, Jefferson Gramm, Bandera’s second representative
on the Board, will resign from the Board if Bandera beneficially owns less than
360,000 shares of Common Stock immediately following the Closing. Additionally, the
Company received
a letter agreement from Edward Ramsden, a director of the Company and
representative of Caburn Management, that Caburn will tender its
323,672 shares of Common Stock in the Offer and that Mr. Ramsden will
resign from the Board effective as of the
Closing.
(e) On
August 26, 2010, the Company entered into the Amended Agreement with Bandera, as
further described in Item 1.01 hereto. Under the Amended Agreement,
Eric Kuby is expected to be appointed to the Board at the
Closing. Additionally, if Bandera beneficially owns less than 450,000
shares of Common Stock immediately following the Closing, Robert Frankfurt is
expected to be appointed to the Board. In accordance with the Amended
Agreement, on August 26, 2010, the Board voted to reduce the size of the Board
to 6 directors immediately following the Closing, provided that if Bandera
beneficially owns less than 450,000 shares of Common Stock immediately following
the Closing, the Board will be comprised of 7 directors.
Mr. Kuby,
age 50, has been a Chief Investment Officer and a member of the Investment
Committee of North Star Investment Management Corporation, an SEC registered
investment advisor, since September 2004. Previously, he was a
Director of Investments at Wachovia Securities and a Senior Portfolio Manager of
First Albany Asset Management, where he served on the Investment Strategy
Committee specifically responsible for the micro cap portfolio. Prior to
joining First Albany, Eric was Senior Portfolio Manager at Oppenheimer
Investment Advisors, Chief Investment Officer at Rodman Advisory Services and
Associate Director at Bear Stearns. Eric holds an MBA in Finance as well as a BA
in Economics from The University of Chicago. He holds the Series 7, 63 and
65 securities licenses. The Board believes that Mr. Kuby’s experience as
the Chief Investment Officer of North Star Investment Management Corporation
will be valuable to the Company as it explores investment opportunities with its
remaining assets after the Offer.
Mr.
Frankfurt, age 45, is the founder of Myca Partners, Inc., an investment advisory
services firm, and has served as its President since November 2006. From
February 2005 through December 2005, Mr. Frankfurt served as the Vice President
of Sandell Asset Management Corp., a privately owned hedge fund. From
October 2002 through January 2005, Mr. Frankfurt was a private investor.
Mr. Frankfurt graduated from the Wharton School of Business at the University of
Pennsylvania with a B.S. in Economics and received an M.B.A. from the Anderson
Graduate School of Management at UCLA. The Board believes that Mr. Frankfurt's
experience in managing and making investments, including value-oriented
investments, will be valuable to the Company as it explores investment
opportunities with its remaining assets after the Offer. Mr. Frankfurt is
also a director of WHX Corporation, a diversified global industrial
company.
Item
8.01 Other.
On August 26, 2010, the Company
announced that its Board of Directors has approved a Offer by the Company to
acquire $45 million in shares of its common stock at a cash price of $3.25 per
share. The Company intends to commence the Offer as soon as practicable and
it will remain open for at least 20 business days. Under the terms of
the Offer, stockholders may tender all or a portion of their
shares. Neither Peerless nor its Board of Directors anticipates
making any recommendation to stockholders as to whether to tender or, if so, how
many shares to tender. The Offer is subject to market, economic and
business conditions affecting the Company and other customary
conditions. Tenders of
shares must be made on or prior to the expiration of the tender offer and shares
may be withdrawn at any time on or prior to the expiration of the
Offer. If the Offer is oversubscribed by stockholders, the
Company will purchase shares on a pro rata basis in accordance with the number
of shares tendered.
On August 27, 2010, the Company issued
a press release regarding the foregoing matters, a copy of which is filed
herewith as Exhibit 99.1and incorporated by reference.
Item
9.01 Financial Statements and Exhibits
(c)
Exhibit
No. Exhibit
10.1
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Amended and Restated Nomination
Agreement, dated as of August 26, 2010, by and among Peerless Systems
Corporation, Bandera Partners LLC, Bandera Master Fund L.P., Bandera
Partners Management LLC, and Gregory Bylinsky and Jefferson
Gramm.
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10.2
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Letter, dated August 26, 2010, to
Peerless Systems Corporation from Edward Ramsden and Caburn Capital,
LP.
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99.1
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Press release, dated August 27,
2010.
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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.
PEERLESS
SYSTEMS CORPORATION
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Date: August
26, 2010
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By:
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/s/
William Neil
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Name:
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William
Neil
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Title:
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Chief
Financial Officer
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