UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D/A
(Amendment No. 1)
Under the Securities Exchange Act of 1934
Opus360 Corporation
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(Name of Issuer)
Common Stock, $0.001 par value per share
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(Title of Class of Securities)
68400F109
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(CUSIP Number)
Pekka Pere with copies to:
Proha Plc Petri Y.J. Haussila, Esq.
Maapallonkuja 1 A White & Case LLP
FIN-02210 Espoo Etelaranta 14
Finland FIN-00130 Helsinki
011-358-20-4362-000 Finland
011-358-9-228-228-641
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 31, 2001
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(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 which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
CUSIP No. 68400F109
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Proha Plc I.R.S. IDENTIFICATION NO. ___________
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED / /
PURSUANT TO ITEMS 2(d) or 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Finland
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NUMBER OF SHARES BENEFICIALLY 7 SOLE VOTING POWER
OWNED BY EACH REPORTING PERSON None
WITH
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8 SHARED VOTING POWER
77,272,053
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9 SOLE DISPOSITIVE POWER
None
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10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
77,272,053
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
62.4%
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14 TYPE OF REPORTING PERSON
CO
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Page 2 of 11
SCHEDULE 13D/A
OPUS360 CORPORATION
This Amendment No. 1 amends and supplements the Schedule 13D filed on
April 23, 2001 (the "Statement") by Proha Plc, a public company listed on the
Helsinki Stock Exchange and incorporated under the laws of Finland ("Proha"), in
relation to the common stock, par value $0.001 per share (the "Common Stock"),
of Opus360 Corporation, a Delaware corporation (the "Issuer"). Capitalized terms
used but not defined herein have the meaning ascribed to such terms in the
Statement.
Item 4. Purpose of the Transaction
The prior responses to this item set forth in the Statement are
deleted in their entirety and replaced by the following:
"(a) - (j) Pursuant to the terms of the Share Exchange Agreement,
dated April 11, 2001, by and among the Issuer and Proha (the "April Share
Exchange Agreement"), as amended by the First Amendment to the Share Exchange
Agreement, dated July 10, 2001 (the "First Amendment", and together with the
April Share Exchange Agreement, the "Share Exchange Agreement"), Proha entered
into a Voting Agreement on April 11, 2001 (the "Stockholder Voting Agreement")
with Ari Horowitz (the "Stockholder"). Pursuant to the Stockholder Voting
Agreement, the Stockholder granted Proha an irrevocable proxy (the "Proha
Irrevocable Proxy") which appointed Proha as the Stockholder's proxy and
attorney-in-fact with full power of substitution, to vote all shares of Common
Stock owned by the Stockholder for the purposes described below. The Proha
Irrevocable Proxy does not give ownership of the shares of Common Stock owned
directly or indirectly by the Stockholder to Proha and is subject to certain
limitations, as set forth in the Stockholder Voting Agreement. The Proha
Irrevocable Proxy will terminate and be of no further force and effect on the
earlier to occur of (i) the Second Closing (as defined below), (ii) September
30, 2001, and (iii) the termination of the Share Exchange Agreement pursuant to
the terms thereof. The Stockholder Voting Agreement is filed as Exhibit 10.1
hereto. Simultaneously with the execution of the First Amendment, Proha entered
into the Voting Agreement by and between Proha and the Stockholder, dated July
31, 2001 (the "Proha Voting Agreement"), the form of which was filed by the
Issuer as Exhibit 10.1 to the Current Report on Form 8-K with the U.S.
Securities and Exchange Commission (the "SEC") on July 12, 2001 (SEC file number
000-29793) and is incorporated herein by reference. Pursuant to the terms of the
Proha Voting Agreement, Proha granted the Stockholder an irrevocable proxy (the
"Stockholder Irrevocable Proxy") which appointed the Stockholder as Proha's
proxy and attorney-in-fact with full power of substitution to vote all shares of
Common Stock owned by Proha for the purposes described below. The Stockholder
Irrevocable Proxy does not give ownership of the shares of Common Stock owned
directly or indirectly by Proha to the Stockholder and is subject to certain
limitations, as set forth in the Proha Voting Agreement. The Stockholder
Irrevocable Proxy will terminate and be of no further force and effect on the
earlier to occur of (i) the Second Closing and (ii) the termination of the Share
Exchange Agreement pursuant to the terms thereof.
Page 3 of 11
On April 11, 2001, Proha and the Issuer entered into the April Share
Exchange Agreement, which was filed by the Issuer as Exhibit 2.1 to the Current
Report on Form 8-K by the Issuer with the SEC on April 12, 2001 (SEC file number
000-29793) and is incorporated herein by reference, as amended by the First
Amendment which was filed by the Issuer as Exhibit 2.1 to the Current Report on
Form 8-K with the SEC on July 12, 2001 (SEC file number 000-29793) and is
incorporated herein by reference. Pursuant to the Share Exchange Agreement and
subject to the terms and conditions set forth therein, the Issuer issued to
Proha 73,938,702 shares of Common Stock (the "First Tranche") on July 31, 2001
(the "First Closing Date") which represented approximately 37.1% of the total
number of shares of Common Stock the Issuer is obligated to issue to Proha under
the Share Exchange Agreement. In consideration for the issuance of the First
Tranche on the First Closing Date, Proha assigned, transferred and delivered to
the Issuer, and the Issuer accepted delivery at the First Closing (as defined
below) of all of the issued and outstanding shares of Artemis Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Proha (the
"Artemis Shares"). The consummation of such transactions are collectively
referred to herein as the "First Closing". Pursuant to the Share Exchange
Agreement and subject to the terms and conditions set forth therein (including
approval by the stockholders of the Issuer), the Issuer shall issue and Proha
shall accept from the Issuer on the Second Closing Date (as defined below) a
number of shares of Common Stock (the "Second Tranche") which shall equal (x)
80% of the Common Stock on a fully-diluted basis as of the First Closing Date,
less (y) the sum of the First Tranche and any other shares of Common Stock
issued to Proha prior to the Second Closing Date. Based on the number of shares
of Common Stock outstanding as of July 31, 2001 (and after giving effect to the
First Closing), the Issuer is obligated to issue 125,311,458 additional shares
of Common Stock at the Second Closing. In consideration for the issuance of the
Second Tranche on the Second Closing Date, Proha shall assign, transfer and
deliver to the Issuer, and the Issuer shall take delivery at the Second Closing,
of (i) a number of shares of Intellisoft Oy, a Finnish corporation and a
wholly-owned subsidiary of Proha, equal to 19.9% of the issued and outstanding
shares of Intellisoft Oy on a fully-diluted basis (the "Intellisoft Shares"),
and (ii) a number of shares of Accountor Oy, a Finnish corporation and a
wholly-owned subsidiary of Proha, representing 19.9% of the issued and
outstanding shares of Accountor Oy on a filly-diluted basis (the "Accountor
Shares", and together with the Artemis Shares and the Intellisoft Shares, the
"Exchanged Shares"). The consummation of such transactions is collectively
referred to herein as the "Second Closing" and the date on which such
transaction are to be consummated is referred to herein as the "Second Closing
Date".
The consummation of the Second Closing is conditioned upon, among
other things, the receipt of the Stockholder Approval (as defined below). As of
July 31, 2001, Proha has sufficient voting power to grant the Stockholder
Approval.
Pursuant to the Share Exchange Agreement, the Stockholder entered into
the Stockholder Voting Agreement whereby the Stockholder agreed to (i) vote the
Stockholder's shares of Common Stock in favor of the transactions contemplated
by the Share Exchange Agreement at a meeting of the Issuer's stockholders called
for the purpose of securing approval of the transactions contemplated by the
Share Exchange Agreement by the Issuer's stockholders, including the amendment
and restatement of the Issuer's certificate of incorporation to increase the
Issuer's authorized Common Stock in order to permit the issuance of the Second
Tranche (the "Stockholder Approval"), (ii) vote against any alternative
transactions and certain extraordinary
Page 4 of 11
transactions involving a reorganization of the Issuer or a sale of all or
substantially all of the assets of the Issuer, (iii) vote in favor of the
issuance of Common Stock at the Second Closing, and (iv) vote in favor of
Prohas's nominees to the Issuer's Board of Directors. In furtherance of the
foregoing, the Stockholder has granted to Proha the Proha Irrevocable Proxy to
vote the Stockholder's shares of Common Stock as described above. The Proha
Irrecovable Proxy is granted only to secure the performance of the duties of the
Stockholder pursuant to the Stockholder Voting Agreement. On July 31, 2001, the
Stockholder owned 3,333,351 shares of Common Stock representing approximately
2.7% of the issued and outstanding shares of Common Stock as of July 31, 2001
(based on the Issuer's representations in the Share Exchange Agreement and the
Stockholder Voting Agreement and after giving effect to the First Closing).
Pursuant to the Stockholder Voting Agreement, the Stockholder agreed
not to (i) take any actions inconsistent with the obligations and commitments
assumed by Proha pursuant to the Stockholder Voting Agreement, including any
actions involving an alternative transaction, and (ii) directly or indirectly
sell, transfer, assign or encumber any shares of Common Stock owned by the
Stockholder prior to the Second Closing.
Pursuant to the Proha Voting Agreement, the Stockholder agreed to (i)
vote the shares of Common Stock owned by Proha for the purpose of effecting the
Stockholder Approval, (ii) vote against any alternative transaction and certain
extraordinary transactions involving a reorganization of the Issuer or a sale of
all or substantially all of the assets of the Issuer and (iii) vote against any
action that would materially adversely affect the transactions contemplated by
the Share Exchange Agreement. In furtherance of the foregoing, Proha has granted
to the Stockholder the Stockholder Irrevocable Proxy to vote the shares of
Common Stock owned by Proha as described above. The Stockholder Irrecovable
Proxy is granted only to secure the performance of the duties of Proha pursuant
to the Proha Voting Agreement. On July 31, 2001, Proha owned 73,938,702 shares
of Common Stock representing approximately 59.7% of the issued and outstanding
shares of Common Stock as of July 31, 2001 (based on the Issuer's
representations in the Share Exchange Agreement and after giving effect to the
First Closing).
Pursuant to the Proha Voting Agreement, Proha agreed not to (i) take
any actions inconsistent with the obligations and commitments assumed by the
Stockholder pursuant to the Proha Voting Agreement, including any actions
involving an alternative transaction and (ii) directly or indirectly sell,
transfer, assign or encumber any shares of Common Stock owned by Proha prior to
the Second Closing.
The Share Exchange Agreement contains certain restrictive covenants
(subject to certain exceptions) with respect to the conduct of the business of
the Issuer from the date of the Share Exchange Agreement through the Second
Closing, pursuant to which the Issuer has agreed, among other things, without
the prior written consent of Proha, not to (i) declare and pay dividends, (ii)
issue or sell any of its securities or make any other changes in its capital
structure, (iii) amend its charters or bylaws, and (iv) enter into certain
material transactions.
As of July 31, 2001, in accordance with the Share Exchange Agreement,
the composition of the Board of Directors of the Issuer was changed to consist
of 8 members, 5 of which are nominees of Proha. Pursuant to the Share Exchange
Agreement, the Issuer's Board of
Page 5 of 11
Directors will be adjusted as follows: so long as Proha, or any Proha successor,
beneficially owns at least (i) 50% of the aggregate issued and outstanding
shares of Common Stock, the Issuer's Board of Directors shall include 5 nominees
of Proha, (ii) 33.33% but less than 50% of the aggregate issued and outstanding
shares of Common Stock, the Issuer's Board of Directors shall include 4 nominees
of Proha, and (iii) 10% but less than 33.33% of the aggregate issued and
outstanding shares of Common Stock, the Issuer's Board of Directors shall
include 3 nominees of Proha. Prior to the earlier to occur of the Second Closing
or the termination of the Share Exchange Agreement, a committee of the Board of
Directors of the Issuer will be established and will be composed of directors of
the Issuer other than directors that have been nominated by Proha (the "Issuer
Directors Committee"). Without the majority consent of the Issuer Directors
Committee, Proha will not cause the Issuer to breach any of its covenants under
the Share Exchange Agreement and related documents, waive any of Proha's
obligations under the Share Exchange Agreement or issue or authorize any
agreements, obligations or commitments relating to shares of capital stock of
the Issuer.
The Share Exchange Agreement may be terminated (i) by mutual agreement
of the parties at any time, provided that after the First Closing such agreement
include the consent of the Issuer Directors Committee, (ii) by either party if
Stockholder Approval has not been obtained by December 15, 2001 (except if the
failure to obtain Stockholder Approval is due to Proha's breach of the Proha
Voting Agreement, in which case Proha may not terminate the Share Exchange
Agreement), (iii) by either party if a court of competent jurisdiction or any
governmental authority shall have issued an order prohibiting the transactions
contemplated by the Share Exchange Agreement, (iv) by the Issuer if the Board of
Directors of Proha fails to recommend to Proha's stockholders approval of the
Share Exchange Agreement and the transactions contemplated thereby, Proha
breaches certain representations and warranties, or Proha breaches the Proha
Voting Agreement, and (v) by Proha if, prior to the First Closing Date, the
Issuer's Board of Directors approves an alternative transaction or the Issuer
materially violates certain covenants.
If the Share Exchange Agreement is terminated by Proha or the Issuer
prior to the Second Closing under the circumstances described in clause (ii) in
the preceding paragraph and (i) Proha has not breached the Proha Voting
Agreement, (ii) an alternative transaction has been proposed and publicly
announced to the Issuer's stockholders after July 10, 2001 and prior to the
Issuer's stockholders meeting, and (iii) within twelve months after the date of
such termination the Issuer enters into a binding agreement with respect to such
alternative transaction, the Issuer is obligated to reimburse Proha for its
out-of-pocket expenses incurred in connection with the Share Exchange Agreement
and is obligated to pay Proha a termination fee of up to $250,000.
If the Share Exchange Agreement is terminated by Proha or the Issuer
prior to the Second Closing under the circumstances described in clause (ii) of
the second preceding paragraph and Proha has not breached the Proha Voting
Agreement, then (i) the Issuer will deliver to Proha a number of Artemis shares
equal to the number of Artemis Shares received by the Issuer at the First
Closing multiplied by a fraction where the numerator is the Second Tranche and
the denominator is the sum of the number of shares of Common Stock issued in the
First Tranche and to be issued in the Second Tranche and (ii) Proha will deliver
to the Issuer a number of Intellisoft Shares and Accountor Shares equal to 19.9%
of the issued and outstanding Intellisoft Shares and Accountor Shares on a
fully-diluted basis (calculated as if the Second
Page 6 of 11
Closing had occurred) multiplied by a fraction where the numerator is the sum of
the First Tranche and any other shares of Common Stock issued to Proha prior to
termination of the Share Exchange Agreement and the denominator is the sum of
the number of shares of Common Stock issued in the First Tranche and to be
issued in the Second Tranche.
Pursuant to the Share Exchange Agreement, Proha shall exercise a
purchase option within 90 days following January 1, 2002 to acquire the
remaining and outstanding shares of Artemis International GmbH pursuant to the
Share Option Agreement, dated December 4, 2000, by and between Proha and Holger
Blumenthal and David Thomson. Proha shall transfer such shares to the Issuer at
no additional consideration.
Pursuant to the Share Exchange Agreement, Proha and the Issuer entered
into a Registration Rights Agreement at the First Closing (the "Registration
Rights Agreement"). The Registration Rights Agreement grants to Proha and its
assignees (the "Holders") the right to require the Issuer to register for offer
and sale under the Securities Act of 1933 all or a portion of the shares of
Common Stock acquired by Proha under the Share Exchange Agreement or other
securities of the Issuer subsequently acquired by Proha (collectively, the
"Registerable Securities"). In addition, a majority of Holders may request that
the Issuer effect a shelf registration on Form S-3, if eligible, covering all or
a portion of the Registerable Securities then outstanding. The Holders also have
the right, subject to certain limitations, to request the Issuer include their
respective Registerable Securities in a registration undertaken by the Issuer
for its own behalf or on behalf of any of its other stockholders. All requests
for registrations are subject to customary terms and conditions. The Issuer has
agreed to pay all registration expenses incurred by it in connection with the
exercise of registration rights by the Holders. The Registration Rights
Agreement is filed as Exhibit 10.2 hereto.
The description of each of the agreements herein are qualified in
their entirety by reference to such agreements, copies of which are filed as
Exhibits hereto or are incorporated by reference from other filings of the
Issuer with the SEC.
Other than as described herein, Proha nor, to the best if their
knowledge, any of the individuals referred to in Item 2, has any present plan or
proposal which relates to, or could result in the occurrence of, any of the
events referred to in subparagraphs (a) through (j) of Item 4 of Schedule 13D
(although they reserve the right to develop such plans)."
Item 5. Interest in Securities of the Issuer
The prior responses to this item set forth in the Statement are
deleted in their entirety and replaced by the following:
"(a) Proha's beneficial ownership of 73,938,702 shares of Common
Stock, as a result of its acquisition of Common Stock at the First Closing
pursuant to the Share Exchange Agreement, constitutes beneficial ownership of
approximately 59.7% of the total number of shares of outstanding Common Stock as
of July 31, 2001 (based on the Issuer's representations in the Share Exchange
Agreement). In addition, as a result of the execution of the Stockholder Voting
Agreement, Proha may be deemed to be the beneficial owner of 3,333,351 shares of
Page 7 of 11
Common Stock, which would represent approximately 2.7% of the shares of issued
and outstanding Common Stock as of July 31, 2001 (based on the Issuer's
representations in the Share Exchange Agreement and the Stockholder Voting
Agreement), which, when aggregated with the 73,938,702 shares of Common Stock
acquired by Proha at the First Closing, constitutes beneficial ownership by
Proha of approximately 62.4% of the total number of shares of outstanding Common
Stock as of July 31, 2001 (based on the Issuer's representations in Share
Exchange Agreement and Stockholder Voting Agreement). Proha expressly disclaims
beneficial ownership of the shares of Common Stock which are subject to the
Stockholder Voting Agreement.
(b) In respect of the shares of Common Stock Proha acquired at the
First Closing pursuant to the Share Exchange Agreement, Proha has shared power
to vote or to direct to vote 73,938,702 shares of Common Stock, which represents
approximately 59.7% of the shares of issued and outstanding Common Stock as of
July 31, 2001 (based on the Issuer's representations in the Share Exchange
Agreement), with the Stockholder pursuant to the Proha Voting Agreement. Proha
does not have the power to dispose or direct the disposition of such shares of
Common Stock pursuant to the Proha Voting Agreement. In respect of the shares of
Common Stock subject to the Stockholder Voting Agreement, Proha has shared power
to vote or to direct to vote 3,333,351 shares of Common Stock, which represents
approximately 2.7% of the shares of issued and outstanding Common Stock as of
July 31, 2001 (based on the Issuer's representations in the Share Exchange
Agreement and the Stockholder Voting Agreement), with the Stockholder. Proha
does not have any power to dispose or direct the disposition of any of such
shares of Common Stock. Proha has total shared voting power to direct to vote
77,272053 shares of Common Stock, which represents approximately 62.4% of the
shares of issued and outstanding Common Stock as of July 31, 2001 (based on the
Issuer's representations in the Share Exchange Agreement and the Stockholder
Voting Agreement).
(c) Except as described herein, neither Proha nor, to the best of
Proha's knowledge, any of the persons referred to in Schedule I attached hereto,
beneficially owns or has acquired or disposed of any shares of Common Stock
since April 23, 2001.
(d) Not applicable.
(e) Not applicable."
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The prior responses to this item set forth in the Statement are hereby
amended and supplemented by adding the following below the final paragraph
thereof:
"Registration Rights Agreement. The Holders have certain registration
rights pursuant to the Registration Rights Agreement, including the right to
require that the Issuer register for offer or sale, under the Securities Act of
1933, their respective Registerable Securities. Additionally, a majority of the
Holders may request that the Company effect a shelf registration, if eligible,
of the Registerable Securities then outstanding. The Holders also have the
Page 8 of 11
right, subject to certain limitations, to request that the Issuer include their
respective Registerable Securities in a registration undertaken by the Issuer on
its behalf or on behalf of any of its other stockholders. The Issuer has agreed
to pay all the registration expenses incurred in connection with the exercise of
registration rights by the Holders. All requests for registration are subject to
customary terms and conditions."
Item 7. Material to be filed as Exhibits
The prior responses to this item set forth in the Statement are hereby
amended and supplemented by adding the following:
"10.2 Registration Rights Agreement, dated July 31, 2001, by and between
Proha Plc and Opus360 Corporation"
Page 9 of 11
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.
Dated: July 31, 2001
PROHA PLC
By: /s/ Pekka Pere
-------------------------------
Name: Pekka Pere
Title: Chief Executive Officer
Page 10 of 11
EXHIBIT INDEX
The Exhibit Index of the Statement is hereby amended and supplemented
by adding the following:
"10.2 Registration Rights Agreement, dated July 31, 2001, by and between
Proha Plc and Opus360 Corporation"
Page 11 of 11