Item 8.01
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Other
Events.
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On2 Technologies, Inc - Recent Material EventAs
announced on August 5, 2009, Google Inc. (“Google”) entered into an
Agreement and Plan of Merger, dated August 4, 2009 (the “merger agreement”), by and among
Google, Oxide Inc., a direct, wholly owned subsidiary of Google, referred to
herein as Oxide, and On2 Technologies, Inc. (the “Company”). The merger
agreement, which is included in the registration statement on Form S-4, as
amended (the “Registration Statement”), filed by Google
with the Securities and Exchange Commission (the “SEC”), provides that
Oxide will merge with and into On2, with On2 continuing as a direct, wholly
owned subsidiary of Google (referred to herein as the “merger”).
As
previously disclosed in a Form 8-K filed by the Company on August 10, 2009, and
as discussed in the Registration Statement under the caption “On2 Proposal 1 –
The Merger – Litigation Related to the Merger,” since the proposed merger was
announced on August 5, 2009, On2 has been served with five purported class
action complaints, four filed in the Court of Chancery of the State of Delaware,
which have been consolidated into a single action (the “Delaware Action”), and
another filed in the Supreme Court of the State of New York, County of Queens
(the “New York Action”). On September 17, 2009, plaintiffs in the
Delaware Action filed a Consolidated Verified Class Action Complaint and
plaintiff in the New York Action filed an Amended Class Action
Complaint. In general, these pleadings allege, among other things,
that the members of the On2 board of directors breached their fiduciary duties
to the stockholders of On2 in connection with negotiating and entering into the
merger agreement and by making materially misleading disclosures about the
merger negotiations and merger terms in the initial preliminary proxy
statement/prospectus and that Google and On2 aided and abetted in such alleged
breaches of the directors’ duties. Both actions seek similar relief,
including, among other things, declaratory and injunctive relief (including
enjoining the closing of the proposed merger) and also seek damages in an
unspecified amount.
Although
On2, the On2 directors and Google believe that the Delaware Action and the New
York Action are entirely without merit and that they have valid defenses to all
claims, to minimize the costs associated with this litigation, on October 23,
2009, On2 and the On2 directors and the plaintiffs to each of the Delaware
Action and the New York Action entered into a memorandum of understanding
(“MOU”) contemplating the settlement of all claims in each of the Delaware
Action and the New York Action. Under the MOU, the plaintiffs, on behalf of
themselves and the putative class, agreed to settle all the aforementioned
litigation and release the named defendants in the actions (including Google,
which is not participating in the settlement) and their affiliates from, among
other things, claims related to the merger. Pursuant to the terms of the MOU,
On2 agreed to provide additional supplemental disclosures that are reflected in
the proxy statement/prospectus, which forms a part of the Registration
Statement. The settlement is contingent upon, among other things, further
definitive documentation, approval of the settlement and the dismissal with
prejudice of the actions by, respectively, the Delaware Court of Chancery and
the Supreme Court of the State of New York. The proposed
settlement is not in any way an admission of any wrongdoing or liability in
connection with the plaintiffs’ allegations and the On2 directors maintain that
they diligently and scrupulously complied with their fiduciary and other legal
duties.
Additional
Information
In
connection with the proposed merger, Google has filed the Registration Statement
with the SEC, which includes a preliminary Proxy Statement of On2 and also
constitutes a Prospectus of Google. The definitive Proxy Statement/Prospectus
will be mailed to On2 stockholders prior to the On2 special meeting at which
holders of On2 common stock will be asked to vote on the merger proposal. The
Registration Statement and the Proxy Statement/Prospectus contain important
information about Google, On2, the proposed merger and related matters. Investors and security holders are
urged to read the Registration Statement and the Proxy
Statement/Prospectus (including all amendments and supplements to it)
carefully. Investors and security holders may also obtain free copies of
the Registration Statement and the Proxy Statement/Prospectus and other
documents filed with the SEC by Google and On2 through the web site maintained
by the SEC at www.sec.gov and by contacting Google Investor Relations at
+1-650-253-7663 or On2 Investor Relations at +1-518-881-4299. In addition,
investors and security holders can obtain free copies of the
documents filed with the SEC on Google’s website at
investor.google.com and on On2’s website at www.on2.com.
(d) Exhibits
99.1
Press release dated October 26, 2009 titled “On2 Technologies
Reports Proposed Settlement in Litigation Involving Proposed Merger with
Google”
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:
October 26, 2009
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