UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

under the Securities Exchange Act of 1934*

 

 

 

TUMBLEWEED COMMUNICATIONS CORP.

(Name of Issuer)

 

 

Common Stock, $0.001 par value

(Title of Class of Securities)

 

 

899690101

(CUSIP Number)

 

 

Christophe Fabre

President and Chief Executive Officer

Axway Inc.

8388 Hartford Drive, Suite 100

Scottsdale, Arizona 85255

(480) 627 1800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

 

June 5, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.   ¨

Note:   Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

*   The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.: 899690101   13 D   Page 2 of 13

 

  1  

Name of Reporting Person    I.R.S Identification No. of above persons (entities only)

 

             Axway Inc.

             86-0834866

   
  2  

Check the Appropriate Box if a Member of a Group

(a)   ¨

(b)   x

   
  3  

SEC Use Only

 

   
  4  

Source of Funds

 

             OO

   
  5  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

            —

   
  6  

Citizenship or Place of Organization

 

             Delaware

   

Number of  

Shares  

Beneficially  

Owned By  

Each  

Reporting  

Person  

With  

 

  7    Sole Voting Power

 

                 0

 

  8    Shared Voting Power

 

                 9,090,307(1)

 

  9    Sole Dispositive Power

 

                 0

 

10    Shared Dispositive Power

 

                 0

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

             9,090,307(1)

   
12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

            —

   
13  

Percent of Class Represented by Amount in Row (11)

 

             Approximately 15.00%(2)

   
14  

Type of Reporting Person

 

             CO

   


CUSIP No.: 899690101   13 D   Page 3 of 13

 

  1  

Name of Reporting Person    I.R.S Identification No. of above persons (entities only)

 

             Axway Software SA

             None

   
  2  

Check the Appropriate Box if a Member of a Group

(a)   ¨

(b)   x

   
  3  

SEC Use Only

 

   
  4  

Source of Funds

 

             OO

   
  5  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

            —

   
  6  

Citizenship or Place of Organization

 

             France

   

Number of  

Shares  

Beneficially  

Owned By  

Each  

Reporting  

Person  

With  

 

  7    Sole Voting Power

 

                 0

 

  8    Shared Voting Power

 

                 9,090,307(1)

 

  9    Sole Dispositive Power

 

                 0

 

10    Shared Dispositive Power

 

                 0

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

             9,090,307(1)

   
12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

            —

   
13  

Percent of Class Represented by Amount in Row (11)

 

             Approximately 15.00%(2)

   
14  

Type of Reporting Person

 

             CO

   


CUSIP No.: 899690101   13 D   Page 4 of 13

 

  1  

Name of Reporting Person    I.R.S Identification No. of above persons (entities only)

 

             Sopra Group SA

             None

   
  2  

Check the Appropriate Box if a Member of a Group

(a)   ¨

(b)   x

   
  3  

SEC Use Only

 

   
  4  

Source of Funds

 

             OO

   
  5  

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)

 

            —

   
  6  

Citizenship or Place of Organization

 

             France

   

Number of  

Shares  

Beneficially  

Owned By  

Each  

Reporting  

Person  

With  

 

  7    Sole Voting Power

 

                 0

 

  8    Shared Voting Power

 

                 9,090,307(1)

 

  9    Sole Dispositive Power

 

                 0

 

10    Shared Dispositive Power

 

                 0

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

             9,090,307(1)

   
12  

Check if the Aggregate Amount in Row (11) Excludes Certain Shares

 

            —

   
13  

Percent of Class Represented by Amount in Row (11)

 

             Approximately 15.00%(2)

   
14  

Type of Reporting Person

 

             CO

   


(1) Axway Inc., a Delaware corporation and a wholly owned subsidiary of Axway Software SA, which is a wholly owned subsidiary of Sopra Group SA (“ Axway ”), has entered into a Voting Agreement and Irrevocable Proxy dated as of June 5, 2008 (each, a “ Voting Agreement ”) with certain stockholders of Tumbleweed Communications Corp. (“ Issuer ”), which provides that the signatory stockholders will vote their shares of Common Stock of the Issuer (i) in favor of approval of the principal terms of the Merger (as defined herein) and any matter that is reasonably necessary to facilitate the Merger; and (ii) against any Acquisition Proposal (as defined in the Merger Agreement (as defined herein)) and any other action that would reasonably be expected to frustrate, delay, postpone, prevent or adversely affect the Merger. Axway does not have any rights as a stockholder of Issuer pursuant to the Voting Agreements.
(2) Based on 60,592,501 shares outstanding as of June 3, 2008 (including shares subject to options held by the signatory stockholders that are currently exercisable or exercisable within 60 days after June 5, 2008 as well as restricted stock units held by such signatory stockholders).


ITEM 1. SECURITY AND ISSUER.

This statement on Schedule 13D (the “ Schedule 13D ”) relates to the Common Stock, $0.001 par value (the “ Shares ” or the “ Issuer Common Stock ”), of Tumbleweed Communications Corp., a Delaware corporation (“ Issuer ”). The principal executive office of Issuer is located at 700 Saginaw Drive, Redwood City, CA 94063.

 

ITEM 2. IDENTITY AND BACKGROUND.

(a) - (c) This Schedule 13D is being jointly filed by Sopra Group SA, a corporation organized under the laws of France (“ Sopra ”), by Axway Software SA, a corporation organized under the laws of France (“ Axway Software ”), and by Axway Inc., a Delaware corporation (“ Axway ” and together with Sopra and Axway Software, the “ Reporting Persons ”). Axway is a wholly owned subsidiary of Axway Software, which is a wholly owned subsidiary of Sopra. The address of the principal business and principal office of Sopra is 9 bis, rue de Presbourg, Paris 75116 France. Sopra is a major European provider of consulting, systems integration and application outsourcing. The address of the principal business and principal office of Axway Software is 3, rue du Pré Faucon PAE Les Glaisins, 74940 Annecy Le Vieux France. The address of the principal business and principal office of Axway is 8388 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255, USA. Axway Software and its subsidiaries, including Axway, are a global provider of collaborative business solutions.

As a result of Axway’s entering into the Voting Agreements described in Items 3 and 4 below, the Reporting Persons may be deemed to have formed a “group” with each of the Stockholders (as defined in Item 3 below) for purposes of Section 13(d)(3) of the Act and Rule 13d-5(b)(1) thereunder. Each of the Reporting Persons expressly declares that the filing of this Schedule 13D shall not be construed as an admission by it that it has formed any such group.

To the best of the knowledge of the Reporting Persons as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of Axway, Axway Software and Sopra (including the identified other officers of the Reporting Persons), and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Schedule I hereto. The information contained in Schedule I is incorporated herein by reference.

(d) - (e) During the last five years, neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any of the executive officers or directors of the Reporting Persons (including the identified other officers of the Reporting Persons), has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws.

 

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

The information set forth or incorporated by reference in Item 4 is hereby incorporated herein by reference.

 

ITEM 4. PURPOSE OF TRANSACTION.

Axway entered into an Agreement and Plan of Merger dated as of June 5, 2008 (the “ Merger Agreement ”) by and among Axway, Tornado Acquisition Corp., a Delaware corporation and newly formed wholly owned subsidiary of Axway (“ Merger Sub ”), and Issuer. The Merger Agreement provides for the merger (the “ Merger ”) of Merger Sub with and into Issuer with Issuer as the surviving corporation, pursuant to which each outstanding share of Issuer Common Stock will be converted into the right to receive $2.70 in cash. The Merger is subject to the approval of the Merger Agreement by Issuer’s stockholders, the expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and of the applicable review process under Exon-Florio Amendment of the Defense Production Act of 1950, as amended and any other required regulatory approvals, and the satisfaction or waiver of certain other conditions as more fully described in the Merger Agreement.


In order to facilitate the consummation of the transactions contemplated by the Merger Agreement and in consideration thereof, Sopra entered into an Agreement of Guarantee dated as of June 5, 2008 (the “ Guarantee ”) by and between Sopra and Issuer. The Guarantee provides that Sopra will guarantee performance of the respective obligations of Axway and Merger Sub under the provisions of the Merger Agreement subject to the terms of the Merger Agreement.

Consummation of the Merger would result in the Issuer Common Stock ceasing to be outstanding or authorized to be quoted on The NASDAQ Global Market. In addition, the registration of the Issuer Common Stock under Section 12 of the Securities Act of 1933, as amended, will be terminated.

In order to facilitate the consummation of the transactions contemplated by the Merger Agreement and in consideration thereof, Axway entered into a Voting Agreement and Irrevocable Proxy dated June 5, 2008 (collectively, the “ Voting Agreements ”), with certain stockholders of Issuer identified below (collectively, the “ Stockholders ”) whereby the Stockholders agreed to vote all of their Shares (i) in favor of approval of the principal terms of the Merger and any matter that is reasonably necessary to facilitate the Merger; and (ii) against any Acquisition Proposal (as defined in the Merger Agreement) and any other action that would reasonably be expected to frustrate, delay, postpone, prevent or adversely affect the Merger. In addition, the Stockholders have agreed to execute a proxy in favor of Axway with respect to the voting of the Shares upon the request of Axway. The Voting Agreements terminate upon the earlier to occur of the completion of the Merger or the termination of the Merger Agreement. The name of each Stockholder and the number of outstanding Shares held by each Stockholder and subject to the Voting Agreements are as follows:

 

Stockholders

   Common Stock    Stock Options (1)    RSUs    Total

James P. Scullion

   80,985    2,005,324    339,000    2,425,309

Timothy G. Conley

   99,525    679,252    148,000    926,777

Dr. Taher A. Elgamal

   58,674    692,134    177,000    927,808

Nicholas W. Hulse

   132,478    397,205    177,000    706,683

Bernard J. Cassidy

   5,977    702,041    148,000    856,018

Jeffrey C. Smith (2)

   971,251    702,720    0    1,673,971

Dr. Deborah D. Rieman

   40,150    324,897    0    365,047

Christopher H. Greendale

   42,650    345,314    0    387,964

James A. Heisch

   45,750    116,355    0    162,105

Standish H. O’Grady (3)

   51,542    255,000    0    306,542

Kenneth R. Klein

   35,750    283,333    0    319,083

Jorge E. Rodriguez

   33,000    0    0    33,000

TOTAL

   1,597,732    6,503,575    989,000    9,090,307

 

(1) Stock Options include shares exercisable within 60 days of June 5, 2008.
(2) Common Stock includes 260,000 shares beneficially owned by “The Jeffrey C Smith 1999 Annuity Trust”
(3) Common Stock includes 1,290 shares held in “The O’Grady Revocable Trust” and 11,002 shares held in “The O’Grady Revocable Trust (WSP)”

References to, and descriptions of, the Merger Agreement, the Guarantee and the Voting Agreements as set forth above in Item 4 are qualified in their entirety by reference to the copies of the Merger Agreement, the Guarantee and the form of Voting Agreement included as Exhibits 1, 2 and 3, respectively, to this Schedule 13D, and are incorporated in this Item 4 in their entirety where such references and descriptions appear.

Axway does not have any right to dispose (or direct the disposition of) any Shares pursuant to the Voting Agreements. Accordingly, the Reporting Persons expressly disclaim beneficial ownership of all such Shares.

 

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.

(a) - (b) The number of Shares covered by the Voting Agreements is 9,090,307 (including 6,503,575 shares subject to options that vest within 60 days after June 5, 2008 and 989,000 restricted stock units), which constitutes approximately 15.00% of the Issuer Common Stock, based on the number of Shares outstanding on June 3, 2008 as represented by the Issuer in the Merger Agreement). By virtue of the Voting Agreements, the Reporting Persons


may be deemed to share with the respective Stockholders the power to vote Shares subject to the Voting Agreements. However, no Reporting Person is entitled to any rights as a stockholder of Issuer as to the Shares covered by the Voting Agreements and each Reporting Person disclaims any beneficial ownership of the Shares which are covered by the Voting Agreements. See the information in Items 2 and 3 with respect to the Stockholders and the information in Items 3 and 4 with respect to the Voting Agreements, which information is incorporated herein by reference.

(c) Other than as set forth in this Item 5(a)-(b), to the best of the knowledge of the Reporting Persons as of the date hereof (1) no Reporting Person nor any subsidiary or affiliate of the Reporting Persons nor any of the executive officers or directors of the Reporting Persons (including the identified other officers of the Reporting Persons) beneficially owns any shares of Issuer Common Stock, and (2) there have been no transactions in the shares of Issuer Common Stock effected during the past 60 days by the Reporting Persons, nor to the best of the knowledge of the Reporting Persons, by any subsidiary or affiliate of the Reporting Persons or any of the executive officers or directors of the Reporting Persons (including the identified other officers of the Reporting Persons).

(d) Not applicable.

(e) Not applicable.

Reference to, and descriptions of, the Merger Agreement, the Guarantee and the Voting Agreements as set forth in this Item 5 are qualified in their entirety by reference to the copies of the Merger Agreement, the Guarantee and the form of Voting Agreement, respectively, included as Exhibits 1, 2 and 3 to this Schedule 13D, and incorporated in this Item 5 in their entirety where such references and descriptions appear.

 

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

The information set forth, or incorporated by reference, in Items 3 through 5 is hereby incorporated herein by reference. Copies of the Merger Agreement, the Guarantee and the form of Voting Agreement are included as Exhibits 1, 2 and 3, respectively, to this Schedule 13D. To the best of the knowledge of the Reporting Persons, except as described in this Schedule 13D, there are at present no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 above and between any such persons and any person with respect to any securities of Issuer.

 

ITEM 7. MATERIAL TO BE FILED AS EXHIBITS

 

Exhibit

  

Description

1

   Agreement and Plan of Merger dated as of June 5, 2008, by and among Axway Inc., Tornado Acquisition Corp. and Tumbleweed Communications Corp.(without exhibits).

2

   Agreement of Guarantee dated as of June 5, 2008, by and between Sopra Group SA and Tumbleweed Communications Corp.

3

   Form of Voting Agreement dated as of June 5, 2008, by and among Axway Inc. and certain stockholders of Tumbleweed Communications Corp.


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

    AXWAY INC.
Date: June 12, 2008    

/s/ Christophe Fabre

    Name:  

Christophe Fabre

    Title:  

President and Chief Executive Officer


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

    AXWAY SOFTWARE SA
Date: June 12, 2008    

/s/ Christophe Fabre

    Name:  

Christophe Fabre

    Title:   President and Chief Executive Officer


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

    SOPRA GROUP SA
Date: June 5, 2008    

/s/ Pierre Pasquier

    Name:   Pierre Pasquier
    Title:   Chief Executive Officer


SCHEDULE 1

DIRECTORS AND EXECUTIVE OFFICERS OF AXWAY INC.

The name and present principal occupation of each director and executive officer and another officer of Axway Inc. are set forth below. Except as noted below, the business address for each named person is: c/o Axway Inc., 8388 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255, USA.

 

NAME

  

AXWAY INC. TITLE

  

PRINCIPAL OCCUPATION AND

PRINCIPAL BUSINESS

  

CITIZENSHIP

Christophe Fabre

   President, Chief Executive Officer, and Director    President and Chief Executive Officer. Axway Inc.    France

David Bennett

   Chief Technology Officer and Director    Chief Technology Officer, Axway Inc.    USA

Patrick Donovan

   Chief Financial Officer    Chief Financial Officer, Axway Inc.    USA

Hervé Déchelette*

   Secretary and Treasurer    Secrétaire Général, Sopra Group    France

Pierre Sevray**

   Director    Consultant to Axway Software SA and its subsidiaries (including Axway Inc.)    France

Scott Hausman***

   Senior VP Corporate Development    Senior VP Corporate Development, Axway Inc.    USA

 

* The business address of this person is c/o Sopra Group SA, 9 bis, rue de Presbourg, Paris 75116 France.
*** The business address of this person is Eagleaps 6, impasse Jeanne d’Arc 92190 Meudon.
*** The business address of this person is 1600 Riveredge Parkway, Suite 925, Atlanta, Georgia 30328.

DIRECTORS AND EXECUTIVE OFFICERS OF AXWAY SOFTWARE SA

The name and present principal occupation of each director and executive officer of Axway Software SA are set forth below. Except as noted below, the business address for each named person is: c/o Sopra Group SA, 9 bis, rue de Presbourg, Paris 75116 France.

 

NAME

  

AXWAY SOFTWARE TITLE

  

PRINCIPAL OCCUPATION AND

PRINCIPAL BUSINESS

  

CITIZENSHIP

Pierre Pasquier

   Chairman of the Board of Directors and Chief Executive Officer    Chief Executive Officer, Sopra Group    France

Christophe Fabre*

   Managing director    President and Chief Executive Officer. Axway Inc.    France

Hervé Déchelette

   Director    Secrétaire Général, Sopra Group    France

Pierre Simon

   Director    Chairman of the Paris chamber of Commerce    France

Francois Odin

   Director    Managing Director, Sopra GMT    France

 

* The business address of this person is c/o Axway Inc., 8388 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255, USA.


DIRECTORS AND EXECUTIVE OFFICERS OF SOPRA GROUP SA

The name and present principal occupation of each director and executive officer another officer of Sopra Group are set forth below. The business address for each named person is: c/o Sopra Group SA, 9 bis, rue de Presbourg, Paris 75116 France.

 

NAME

  

SOPRA GROUP TITLE

  

PRINCIPAL OCCUPATION

AND PRINCIPAL BUSINESS

   CITIZENSHIP

Pierre Pasquier

   Chairman of the Board of Directors and Chief Executive Officer    Chief Executive Officer, Sopra Group    France

Dominique Illien

   Managing Director    Managing Director, Sopra Group    France

Alain Brodelle

   Director, Member of the Remuneration and Nomination Committee    Retired    France

Philippe Citerne

   Director, Member of the Remuneration and Nomination Committee   

Managing Director, Société Générale, 17, cours Valmy

 

Tour Société Générale 92072 Paris La Défense Cedex

   France

Gérard Jean

   Director, Member of the Remuneration and Nomination Committee    Chairman and CEO, Altime Conseil 42, rue de Bassano 75008 Paris    France

Pierre-André Martel

   Director, Member of the Audit Committee, Member of the Remuneration and Nomination Committee    Chairman and CEO, Caravelle, 70, avenue Kléber 75116 Paris    France

Bernard Michel

   Director, Member of the Audit Committee    Senior executive, Crédit Agricole, 91-93, boulevard Pasteur 75015 Paris    France

Francois Odin

   Director, Member of the Audit Committee    Managing Director, Sopra GMT    France

Hervé Saint-Sauveur

   Director, Member of the Audit Committee    Retired    France

José Sancho Garcia

   Director    Managing Director, Sopra PROFit    Spain

Gérard Vincent

   Director, Member of the Audit Committee    Retired    France

Kathleen Clark Bracco

   Director, Investor Relations    Director, Investor Relations, Sopra Group    USA


Exhibit Index

 

1

   Agreement and Plan of Merger dated as of June 5, 2008, by and among Axway Inc., Tornado Acquisition Corp. and Tumbleweed Communications Corp.(without exhibits).

2

   Agreement of Guarantee dated as of June 5, 2008, by and between Sopra Group SA and Tumbleweed Communications Corp.

3

   Form of Voting Agreement dated as of June 5, 2008, by and among Axway Inc. and certain stockholders of Tumbleweed Communications Corp.
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