Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40344 Page 1 of 6
`
`
`
`
`
`EXHIBIT A
`
`

`

`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`12/15/2020
`Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40345 Page 2 of 6
`8-K 1 tm2025414d2_8k.htm FORM 8-K
`
`
`
`
`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
`
`Date of Report (Date of earliest event reported): July 24, 2020
`
`FINJAN HOLDINGS, INC.
`(Exact name of registrant as specified in its charter)
`
`000-33304
`(Commission
`File Number)
`
`Delaware
`(State or other jurisdiction of
`incorporation)
`
`
`
`
`
`
`
`
`
`20-4075963
`(I.R.S. Employer
`Identification No.)
`
`2000 University Avenue, Suite 600
`East Palo Alto, CA
`(Address of principal executive offices)
`
`
`
`
`
`
`
`94303
`(Zip Code)
`
`
`
`
`
`
`
`(650) 282 3228
`(Registrant’s 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:
`
` ¨
`
` ¨
`
` ¨
`
` ¨
`
` Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
`
` Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
`
` Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
`
` Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
`
`
`Securities registered pursuant to Section 12(b) of the Act:
`
`
`Title of each class
`Common Stock, par
`value $0.0001 per share
`
`Trading Symbol
`FNJN
`
`Name of each exchange on which registered
`NASDAQ Capital Market
`
`
`Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933
`(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). ¨
`Emerging growth company
`
`If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
`complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
`
`
`
`
`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`
`1/5
`
`EXHIBIT A, PAGE 1
`
`

`

`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`12/15/2020
`Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40346 Page 3 of 6
`
`
`
`
`Introductory Note
`
`As previously disclosed on June 10, 2020, in the Current Report on Form 8-K filed with the Securities and Exchange Commission (the
`“SEC”) by Finjan Holdings, Inc., a Delaware corporation (the “Company”), the Company entered into an Agreement and Plan of
`Merger, dated as of June 10, 2020 (the “Merger Agreement”), with CFIP Goldfish Holdings LLC, a Delaware limited liability company
`(“Parent”), and CFIP Goldfish Merger Sub Inc., a Delaware corporation and direct, wholly owned subsidiary of Parent (“Merger Sub”).
`The Merger Agreement provides for the acquisition of the Company by Parent in an all-cash transaction, consisting of a tender offer
`(the “Offer”) for all of the outstanding shares of common stock, par value $0.0001 per share (the “Common Stock”), of the Company
`by Merger Sub, followed by a subsequent merger of Merger Sub with and into the Company (the “Merger”), with the Company
`surviving the Merger as a wholly owned subsidiary of Parent. Parent and Merger Sub are affiliates of Fortress Investment Group LLC
`(“Fortress”).
`
`Item 2.01. Completion of Acquisition or Disposition of Assets
`
`Pursuant to the Merger Agreement, on June 24, 2020, Merger Sub commenced the Offer to acquire all of the outstanding shares of
`Common Stock (“Shares”) for $1.55 per Share in cash (the “Offer Price”), without interest and net of withholding taxes, upon the terms
`and subject to the conditions set forth in the Offer to Purchase, dated June 24, 2020 (as amended or supplemented), and the related
`Letter of Transmittal.
`
`The Offer and withdrawal rights expired one minute following 11:59 p.m. (12:00 midnight), Eastern Time, on Wednesday, July 22,
`2020 (the “Expiration Time”). Computershare Trust Company, N.A., in its capacity as the depositary and paying agent for the Offer
`(the “Depositary and Paying Agent”), has advised Parent and Merger Sub that, as of the Expiration Time, a total of 21,295,218 Shares
`(excluding Shares with respect to which notices of guaranteed delivery were delivered but which Shares were not yet delivered) had
`been validly tendered and not withdrawn pursuant to the Offer, representing approximately 76.5% of the outstanding Shares. The
`Depositary and Paying Agent also advised Parent and Merger Sub that, as of the Expiration Time, it received Notices of Guaranteed
`Delivery with respect to 55,605 additional Shares, representing approximately 0.2% of the outstanding Shares.
`
`All conditions to the Offer having been satisfied, on July 23, 2020, Merger Sub accepted for payment (such time of acceptance for
`payment, the “Acceptance Time”) all such Shares validly tendered and not properly withdrawn pursuant to the Offer on or prior to the
`Expiration Time, and payment for such Shares will be made by the Depositary and Paying Agent in accordance with the terms of the
`Offer.
`
`On July 24, 2020, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the General Corporation
`Law of the State of Delaware (the “DGCL”), Merger Sub merged with and into the Company, with the Company surviving as a
`wholly-owned subsidiary of Parent. At the effective time of the Merger (the “Effective Time”), each outstanding Share not tendered in
`the Offer (other than Shares (1) held by the Company or its subsidiaries or held in the Company's treasury, (2) owned by Parent,
`Merger Sub or any other direct or indirect subsidiary of Parent or Merger Sub or any person that directly or indirectly owns all of the
`equity interests in Parent or Merger Sub, or (3) owned by any stockholder who is entitled to and has properly exercised and perfected
`such stockholder's demand for appraisal rights in respect of such shares in accordance with, and in compliance in all respects with,
`Section 262 of the DGCL) was automatically canceled and converted into the right to receive an amount in cash equal to the Offer
`Price (the “Merger Consideration”), without interest and net of withholding taxes.
`
`In addition, at the Effective Time, (1) each outstanding Company stock option, whether or not then exercisable or vested, that had an
`exercise price per share that was less than the Merger Consideration became fully vested, cancelled and converted automatically into
`the right to receive an amount in cash, without interest, equal to the product of (a) the excess, if any, of (i) the Merger Consideration
`over (ii) the per share exercise price of such Company stock option multiplied by (b) the number of shares subject to such Company
`stock option immediately before the Effective Time, (2) each Company stock option with a per share exercise price equal to or greater
`than the Merger Consideration was cancelled without consideration as of the Effective Time, and (3) each Company restricted stock
`unit outstanding vested as of immediately before the Effective Time and was cancelled and converted into the right to receive an
`amount in cash, without interest, equal to the product of (a) the Merger Consideration multiplied by (b) the number of Shares subject to
`such Company restricted stock unit immediately before the Effective Time.
`
`
`2
`
`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`
`2/5
`
`EXHIBIT A, PAGE 2
`
`

`

`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`12/15/2020
`Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40347 Page 4 of 6
`
`
`
`
`The aggregate consideration paid in the Offer and the Merger was approximately $43.9 million, excluding related transaction fees and
`expenses. Funds required to complete the Offer and the Merger were provided to Parent by its equity owners.
`
`The foregoing summary description of the Merger Agreement and related transactions does not purport to be complete and is qualified
`in its entirety by reference to the terms of the Merger Agreement, which was filed as Exhibit 2.1 to the Current Report on Form 8-K
`filed by the Company with the SEC on June 10, 2020 and is incorporated by reference into this Item 2.01.
`
`Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
`
`In connection with completion of the Merger, on July 24, 2020, the Company notified the Nasdaq Capital Market (“Nasdaq”) of the
`effectiveness of the Merger and requested that Nasdaq file with the SEC a notification on Form 25 to delist and deregister the Shares
`under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Trading of the Shares on Nasdaq was
`halted prior to the opening of trading on July 24, 2020 and suspended following the closing of trading on July 24, 2020. Nasdaq filed
`the Form 25 with the SEC on July 24, 2020. The Company intends to file with the SEC a Form 15 under the Exchange Act requesting
`the deregistration of the Shares and the suspension of the Company’s reporting obligations under Section 13 and 15(d) of the Exchange
`Act.
`
`Item 3.03. Material Modification to Rights of Security Holders
`
`The information set forth in Item 2.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into
`this Item 3.03.
`
`Item 5.01. Changes in Control of Registrant
`
`The information set forth in Item 2.01, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into
`this Item 5.01.
`
`As a result of the completion of the Offer, a change of control of the Company occurred at the Acceptance Time. Upon the
`effectiveness of the Merger, the Company became a wholly owned subsidiary of Parent.
`
`Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory
`Arrangements of Certain Officers
`
`Departure of Directors; Election of Directors
`
`In connection with completion of the Merger, each member of the Company’s Board of Directors (the “Board”) resigned from the
`Board and from the board of directors of any subsidiary of the Company and from all committees thereof on which such directors
`served, effective as of the Effective Time. On July 24, 2020, pursuant to the Merger Agreement in connection with completion of the
`Merger, the directors of Merger Sub became the directors of the Company. Information regarding the new directors has been previously
`disclosed on Schedule I of the Offer to Purchase as filed with the Tender Offer Statement on Schedule TO on June 24, 2020.
`
`Other than as set forth above, the Company is not aware of any arrangements or understandings between the foregoing persons, on the
`one hand, and any other person, on the other hand, pursuant to which they were selected to their new positions with the Company.
`Other than as set forth above, the Company is not aware of any transaction in which the foregoing persons have an interest requiring
`disclosure under Item 404(a) of Regulation S-K.
`
`
`3
`
`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`
`3/5
`
`EXHIBIT A, PAGE 3
`
`

`

`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`12/15/2020
`Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40348 Page 5 of 6
`
`
`
`
`
`
`Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
`
`Pursuant to the terms of the Merger Agreement, at the Effective Time, the Company’s certificate of incorporation and bylaws were
`amended and restated in their entirety. Copies of the Amended and Restated Certificate of Incorporation of the Company and the
`Amended and Restated Bylaws of the Company are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and
`are incorporated by reference into this Item 5.03.
`
`Item 8.01 Other Events
`
`On July 24, 2020, the Company and Fortress issued a press release announcing the closing of the transactions contemplated by the
`Merger Agreement. A copy of this press release is attached as Exhibit 99.1 hereto and is incorporated by reference into this Item 8.01.
`
`Item 9.01 Financial Statements and Exhibits
`
`(d) Exhibits. The following exhibits are filed with this report:
`
`EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
`Agreement and Plan of Merger, dated as of June 10, 2020, among Finjan Holdings, Inc., CFIP Goldfish
`2.1
`Holdings LLC and CFIP Goldfish Merger Sub (incorporated by reference to Exhibit 2.1 to the Current
`Report on Form 8-K filed by Finjan Holdings, Inc. on June 10, 2020).
`
` Second Amended and Restated Certificate of Incorporation of Finjan Holdings, Inc.
` Second Amended and Restated Bylaws of Finjan Holdings, Inc.
`
`Joint press release issued by Fortress Investment Group LLC and Finjan Holdings, Inc., dated July 24,
`2020.
`
`3.1
`3.2
`99.1
`
`
`
`4
`
`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`
`4/5
`
`EXHIBIT A, PAGE 4
`
`

`

`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`12/15/2020
`Case 3:17-cv-00183-CAB-BGS Document 849-3 Filed 01/06/21 PageID.40349 Page 6 of 6
`
`
`
`
`
`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.
`
`Dated: July 24, 2020
`
`
`
`
`
`
`
`
`FINJAN HOLDINGS, INC.
`
`/s/ Philip Hartstein
`By:
`Name: Philip Hartstein
`Title:
` President & Chief Executive Officer
`
`
`
`https://www.sec.gov/Archives/edgar/data/1366340/000110465920086228/tm2025414d2_8k.htm
`
`5/5
`
`EXHIBIT A, PAGE 5
`
`