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As filed with the Securities and Exchange Commission on February 2, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CLARIFY INC.
(Exact name of registrant as specified in its charter)
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Delaware 77-0259235
(State of incorporation or organization) (IRS Employer
Identification No.)
2560 Orchard Parkway
San Jose, California 95131
(Address of principal executive offices) (Zip Code)
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If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section 12(b) class of securities pursuant to Section
of the Exchange Act and is effective 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(c), pursuant to General Instruction A.(d),
check the following box. [ ] check the following box. [x]
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Securities Act registration statement file number to which this form relates:
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(if applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None None
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
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(Title of Class)
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This Amendment No. 1 amends the Registrant's Registration Statement on Form
8-A as filed with the Securities and Exchange Commission on June 24, 1997 (the
"Registration Statement"), which was filed in connection with the Registrant's
adoption of a Rights Agreement.
This Amendment No. 1 to the Registration Statement is being filed in order
to amend Item 1 of the Registration Statement and to include as an exhibit to
the Registration Statement the First Amendment to Rights Agreement dated as of
October 18, 1999, between the Registrant and Harris Trust Company of California.
Except as amended hereby, there are no other changes to the Registration
Statement.
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Item 1. Description of Registrant's Securities to be Registered
Item 1 of the Registration Statement is hereby amended and restated in its
entirety as follows:
On June 11, 1997, the Board of Directors of Clarify Inc. (the "Company")
declared a dividend of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $.0001 per share, of the Company
(the "Common Stock"). The dividend is payable on June 30, 1997 (the "Record
Date") to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Junior Participating Preferred Stock, par value $.0001 per share, of
the Company (the "Preferred Stock") at a price of $95.00 per one one-thousandth
of a share of Preferred Stock (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement dated as
of June 13, 1997, as the same may be amended from time to time (the "Rights
Agreement"), between the Company Harris Trust Company of California as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (with certain
exceptions, an "Acquiring Person") has acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock or (ii) 10 business days (or such
later date as may be determined by action of the Board of Directors prior to
such time as any person or group of 15% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the Common Stock,
certificates outstanding as of the Record Date, by such Common Stock certificate
together with a copy of the Summary of Rights attached to the Rights Agreement
as Exhibit C.
The Rights Agreement provides that, until the Distribution Date (or earlier
expiration of the Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier expiration of the Rights),
new Common Stock certificates issued after the Record Date upon transfer or new
issuances of Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier expiration of
the Rights), the surrender for transfer of any certificates for shares of Common
Stock outstanding as of the Record Date, even without such notation or a copy of
this Summary of Rights, will also constitute the transfer of the Rights
associated with the shares of Common Stock represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Stock as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on June 13, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is advanced or extended or unless the Rights are earlier
redeemed or exchanged by the Company, in each case as described below.
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The Purchase Price payable, and the number of shares of Preferred Stock or
other securities or property issuable, upon exercise of the Rights is subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) upon the grant to holders of the Preferred Stock at a price, or
securities convertible into Preferred Stock with a conversion price, less than
the then-current market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends or dividends payable in
Preferred Stock) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights is subject to adjustment in the event of a
stock dividend on the Common Stock payable in shares of Common Stock or
subdivisions, consolidations or combinations of the Common Stock occurring, in
any such case, prior to the Distribution Date.
Shares of Preferred Stock purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a quarterly dividend
payment of 1000 times the dividend declared per Common Share. In the event of
liquidation, dissolution or winding up of the Company, the holders of the
Preferred Stock will be entitled to a minimum preferential payment of $1,000 per
share (plus any accrued but unpaid dividends) but will be entitled to an
aggregate payment of 1,000 times the payment made per share of Common Stock.
Each share of Preferred Stock will have 1,000 votes, voting together with the
Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which outstanding shares of Common Stock are converted or
exchanged, each share of Preferred Stock will be entitled to receive 1,000 times
the amount received per share of Common Stock. These rights are protected by
customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of the one one-thousandth interest in a share of
Preferred Stock purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right that number
of shares of Common Stock having a market value of two times the exercise price
of the Right.
In the event that, after a person or group has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provisions will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become void) will
thereafter have the right to receive upon the exercise of a Right that number of
shares of common stock of the person with whom the Company has engaged in the
foregoing transaction (or its parent) that at the time of such transaction have
a market value of two times the exercise price of the Right.
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At any time after any person or group becomes an Acquiring Person and prior
to the earlier of one of the events described in the previous paragraph or the
acquisition by such Acquiring Person of 50% or more of the outstanding shares of
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such Acquiring Person which will have become void),
in whole or in part, for shares of Common Stock or Preferred Stock (or a series
of the Company's preferred stock having equivalent rights, preferences and
privileges), at an exchange ratio of one share of Common Stock, or a fractional
share of Preferred Stock (or other preferred stock) equivalent in value thereto,
per Right.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Preferred Stock or Common Stock
will be issued (other than fractions of Preferred Stock which are integral
multiples of one one-thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts), and in lieu
thereof an adjustment in cash will be made based on the current market price of
the Preferred Stock or the Common Stock.
At any time prior to the time an Acquiring Person becomes such, the Board
of Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption Price"), payable, at the option of
the Company, in cash, shares of Common Stock or such other form of consideration
as the Board of Directors of the Company shall determine. The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
For so long as the Rights are then redeemable, the Company may, except with
respect to the Redemption Price, amend the Rights Agreement in any manner. After
the Rights are no longer redeemable, the Company may, except with respect to the
Redemption Price, amend the Rights Agreement in any manner that does not
adversely affect the interests of holders of the Rights.
Until a Right is exercised or exchanged, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
On October 18, 1999, the Company amended the Rights Agreement by executing
a First Amendment to Rights Agreement (the "Amendment") between the Company and
Harris Trust Company of California. The Amendment provides that none of Nortel
Networks Corporation, a corporation organized under the laws of Canada
("Nortel"), Northern Crown Subsidiary, Inc., a corporation organized under the
laws of Delaware and a wholly owned subsidiary of Nortel, or any of their
respective subsidiaries, Affiliates or Associates is an Acquiring Person (as
that term is defined in the Rights Agreement) execution solely by virtue of the
approval, of the Agreement and Plan of Merger dated as of October 18, 1999 (the
"Merger Agreement"), or consummation of the transactions contemplated by the
Merger Agreement, including the Merger (as defined in the Merger Agreement). The
Amendment further provides
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that, despite the occurrence of any of the events described above, neither a
Shares Acquisition Date (as defined in the Rights Agreement), a Distribution
Date (as defined in the Rights Agreement) nor the provisions in Sections 11(a)
and 13 of the Rights Agreement will be triggered or occur solely by virtue of
the approval, execution or delivery of the Merger Agreement or consummation of
the transactions contemplated by the Merger Agreement, including the Merger or
any public announcement of the foregoing. The Amendment also provides that the
Rights Agreement shall terminate and be of no further force and effect
immediately upon the Effective Time (as defined in the Merger Agreement) and at
that time, the Rights will be cancelled without any consideration to the holders
of the Rights.
This summary description of the Rights and the Amendment is qualified in
its entirety by reference to the full text of the Amendment, which is attached
hereto as Exhibit 4.1 and is incorporated herein by reference, and to the Rights
Agreement, which was attached as Exhibit 1 to the Registration Statement and is
incorporated herein by reference.
Item 2. Exhibits
The following exhibits are filed as a part of this Registration Statement:
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1.* Rights Agreement, dated as of June 13, 1997, between the Company and
Harris Trust Company of California, including the Certificate of
Designation of Series A Junior Participating Preferred Stock, Form of
Right Certificate and Summary of Rights to Purchase Preferred Shares
attached thereto as Exhibits A, B and C, respectively.
4.1 First Amendment to Rights Agreement, dated as of October 18, 1999,
between the Company and Harris Trust Company of California.
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* Previously filed with the Securities and Exchange Commission on June 24, 1997.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Amendment to Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Date: February 2, 2000 CLARIFY INC.
By: /s/ ANTHONY ZINGALE
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Anthony Zingale
President and Chief Executive Officer
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INDEX TO EXHIBITS
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Exhibit No. Description
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1.* Rights Agreement, dated as of June 13, 1997, between the Company
and Harris Trust Company of California, including the Certificate
of Designation of Series A Junior Participating Preferred Stock,
Form of Rights Certificate and Summary of Rights to Purchase
Preferred Shares attached thereto as Exhibits A, B and C
respectively.
4.1 First Amendment to Rights Agreement, dated October 18, 1999,
between the Company and Harris Trust Company of California.
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* Previously filed with the Securities and Exchange Commission on June 24, 1997.
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EXHIBIT 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement (this "Amendment") is entered into
as of October 18, 1999 by and between Clarify, Inc., a Delaware corporation (the
"Company") and Harris Trust Company of California (the "Rights Agent") and
amends the Rights Agreement dated as of June 13, 1997 by and between the Company
and the Rights Agent (the "Agreement"). All capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to such terms in the
Agreement.
Pursuant to Section 27 of the Agreement, the parties to this Amendment
hereby amend the Agreement as follows:
1. The definition of "Acquiring Person" in Section 1 of the
Agreement shall be amended by inserting the following at the end of
such definition:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, none of Nortel Networks Corporation, a corporation
organized under the laws of Canada ("Nortel"), Northern Crown
Subsidiary, Inc., a corporation organized under the laws of Delaware
and a wholly owned subsidiary of Nortel ("Sub"), or any of their
respective subsidiaries, Affiliates or Associates is an Acquiring
Person pursuant to this Agreement solely by virtue of the approval,
execution or delivery of the Agreement and Plan of Merger of even date
herewith among Nortel, Sub and the Company (the "Merger Agreement") or
the consummation of the transactions contemplated by the Merger
Agreement, including the Merger (as defined in the Merger Agreement),
the approval, execution or delivery of the ancillary agreements
relating to the Merger, including the Option Agreement, the
Stockholders' Agreement and the Restrictive Covenant Agreements (as
such are defined in the Merger Agreement)(collectively, the "Related
Agreements"), the consummation of the transactions contemplated by the
Related Agreements or the exercise of by the parties thereto of their
respective rights under the Related Agreements, or any public
announcement of the foregoing."
2. The definition of "Shares Acquisition Date" in Section 1 of the
Agreement shall be amended by inserting the following at the end of
such definition:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Shares Acquisition Date shall not occur solely by
virtue of the approval, execution or delivery of the Merger Agreement
or the consummation of the transactions contemplated by the Merger
Agreement, including the Merger (as defined in the Merger Agreement),
the approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
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3. Section 3(a) shall be amended by inserting the following at the end of
Section 3(a):
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Distribution Date shall not occur solely by virtue
of the approval, execution or delivery of the Merger Agreement or the
consummation of the transactions contemplated by the Merger Agreement,
including the Merger (as defined in the Merger Agreement), the
approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
4. Section 11(a) shall be amended by inserting the following at the end
of the last sentence of Section 11(a):
"; provided, further, that the provisions of this Section 11(a) shall
be inapplicable to, and shall not be triggered by, the approval,
execution or delivery of the Merger Agreement or the consummation of
the transactions contemplated by the Merger Agreement, including the
Merger (as defined in the Merger Agreement), the approval, execution
or delivery of the Related Agreements, the consummation of the
transactions contemplated by the Related Agreements or the exercise by
the parties thereto of their respective rights under the Related
Agreements, or any public announcement of the foregoing."
5. Section 13 shall be amended by inserting the following at the end of
Section 13:
"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, this Section 13 shall not be triggered by virtue of
the approval, execution or delivery of the Merger Agreement or the
consummation of the transactions contemplated by the Merger Agreement,
including the Merger (as defined in the Merger Agreement), the
approval, execution or delivery of the Related Agreements, the
consummation of the transactions contemplated by the Related
Agreements or the exercise by the parties thereto of their respective
rights under the Related Agreements, or any public announcement of the
foregoing."
6. The following shall be added to the Agreement as Section 35:
"Termination. Notwithstanding any provision in this Agreement to the
contrary, this Agreement shall terminate and be of no further force
and effect immediately upon the Effective Time (as defined in the
Merger Agreement) and the Rights shall thereupon be canceled without
the payment of any consideration to the holders of the Rights,
including, without limitation, the Redemption Price."
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7. This Amendment shall be deemed to be entered into under the laws of
the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
8. This Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one
and the same instrument.
9. Except as amended hereby, all of the terms and conditions of the
Agreement are hereby ratified and confirmed.
[Signature Page Follows]
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The parties have duly executed this First Amendment to Rights Agreement as
of the day and year first written above.
THE "COMPANY"
CLARIFY, INC.
By: /s/ JAN A. PRAISNER
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Title: Vice President
Attest: Anthony Zingale
THE "RIGHTS AGENT"
THE HARRIS TRUST COMPANY OF CALIFORNIA
By: /s/ NEIL T. ROSSO
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Signature of Authorized Signatory
Title: Assistant Vice President
