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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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): March 30, 1999
Commission File Number: 3842
FUSION MEDICAL TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3177221
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(State of incorporation or organization) (IRS Employer I.D. No.)
1615 Plymouth Street, Mountain View, CA 94043
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(Address of principal executive offices)
(650) 903-4000
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(Registrant's telephone number, including area code)
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Item 5. Other Events.
On March 30, 1999, Fusion Medical Technologies, Inc. (the "Company")
and BankBoston, N.A. (the "Rights Agent") executed an amendment (the
"Amendment") to the Preferred Shares Rights Agreement dated October 10, 1997
between the Company and the Rights Agent (as amended, modified or supplemented
from time to time, the "Rights Agreement"). Capitalized terms used but not
defined herein shall have the meaning assigned thereto in the Rights Agreement.
Section 27 of the Rights Agreement provides that prior to the
Distribution Date, the Company may supplement or amend the Rights Agreement in
any respect without the consent of the Rights Holders. The State of Wisconsin
Investment Board ("SWIB") requested the Company to amend the Rights Agreement to
exclude SWIB from the definition of "Acquiring Person" unless and until such
time as SWIB becomes the Beneficial Owner of a percentage of Common Shares of
the Company then outstanding which equals or exceeds 20%. SWIB agreed not to
seek election or placement of a representative of SWIB on the Company's Board of
Directors while SWIB is the Beneficial Owner of 15% or more of the outstanding
Common Shares of the Company. The Company approved the Amendment on March 30,
1999.
The Amendment provides that SWIB shall not be deemed to be an Acquiring
Person under the Rights Agreement until SWIB shall have become the Beneficial
Owner of a percentage of Common Shares then outstanding which equals or exceeds
the SWIB Percentage. The SWIB Percentage equals 20% through January 14, 2000.
However, after January 14, 2000, the SWIB Percentage shall be reduced to (i)
15%, if SWIB does not beneficially own 15% or more of the Common Shares
outstanding at the close of business on January 14, 2000, or (ii) if SWIB
beneficially owns 15% or more of the Common Shares outstanding at the close of
business on January 14, 2000, the next highest whole percentage in excess of the
percentage of Common Shares of the Company then outstanding and beneficially
owned by SWIB, not to exceed 20%. The definitions of "Distribution Date" and
"Triggering Event" were also amended to conform to the modifications made to the
definition of Acquiring Person.
The Amendment to the Rights Agreement, specifying the terms of the
Rights, is an exhibit hereto, and the Rights Agreement, including the form of
the Rights Certificate, is incorporated herein by reference. The foregoing
description of the Rights and the Amendment does not purport to be complete and
is qualified in its entirety by reference to such exhibits.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
4.1 Preferred Shares Rights Agreement dated October 10, 1997
by and between the Registrant and BankBoston, N.A., including the Certificate of
Designation, the form of Rights Certificate and the Summary of Rights attached
as Exhibit A, B and C, respectively thereto. Incorporated by
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reference to Exhibit 4.1 to the Registrant's Form 8-A filed on
November 5, 1997.
4.2 Amendment to the Preferred Shares Rights Agreement dated March
30, 1999 between the Registrant and BankBoston, N.A.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused the Report to be signed on its behalf by the
undersigned thereunto duly authorized.
FUSION MEDICAL TECHNOLOGIES, INC.
By /S/ PHILIP M. SAWYER
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Philip M. Sawyer
President and Chief Executive Officer
Dated: April 6, 1999
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FUSION MEDICAL TECHNOLOGIES, INC.
EXHIBIT INDEX
Exhibit No Exhibit Description
4.1 Preferred Shares Rights Agreement dated
October 10, 1997 by and between the
Registrant and BankBoston, N.A., including
the Certificate of Designation, the form of
Rights Certificate and the Summary of Rights
attached as Exhibit A, B and C, respectively
thereto. Incorporated by reference to
Exhibit 4.1 to the Registrant's Form 8-A
filed on November 5, 1997.
4.2 Amendment to the Preferred Shares Rights
Agreement dated March 30, 1999 between the
Registrant and BankBoston, N.A.
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Exhibit 4.2
AMENDMENT
to the
PREFERRED SHARES RIGHTS AGREEMENT
between
FUSION MEDICAL TECHNOLOGIES, INC.
and
BANKBOSTON, N.A.
This Amendment (the "Amendment") to the Preferred Shares Rights Agreement
is made and entered into as of March 30, 1999 between FUSION MEDICAL
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and BANKBOSTON,
N.A., as Rights Agent (the "Rights Agent").
R E C I T A L S
WHEREAS, the Company and the Rights Agent entered into the Preferred Shares
Rights Agreement dated as of October 10, 1997 (as amended, modified, restated or
supplemented from time to time, the "Rights Agreement"); and
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined in the Rights Agreement), the Company may
supplement or amend the Rights Agreement in any respect without the approval of
any holders of Rights; and
WHEREAS, the State of Wisconsin Investment Board ("SWIB") has requested
that the Company amend the Rights Agreement to exclude SWIB from the definition
of Acquiring Person until such time as SWIB becomes the Beneficial Owner of a
percentage of the Common Shares of the Company then outstanding which equals or
exceeds 20%; and
WHEREAS, pursuant to its letter dated March 30, 1999, requesting the
Amendment and in consideration of such Amendment, SWIB agrees not to seek
election or placement of a representative of SWIB on the Company's Board of
Directors while SWIB is the Beneficial Owner of 15% or more of the outstanding
Common Shares of the Company; and
WHEREAS, the Company has determined to modify the terms of the Rights
Agreement in certain respects as set forth herein, and in connection therewith,
is entering into this Amendment and directing the Rights Agent to enter into
this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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1. Effect of Amendment. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
2. Capitalized Terms. All capitalized, undefined terms used in this
Amendment shall have the meanings assigned thereto in the Rights Agreement.
3. Supplement to Definitions. The definitions contained in Section 1 of
the Rights Agreement shall be supplemented by adding the following:
"SWIB" shall mean the State of Wisconsin Investment Board.
"SWIB PERCENTAGE" shall mean 20% to and including January 14, 2000 at
which time the SWIB Percentage shall be reduced to (i) 15% if SWIB is not the
Beneficial Owner of 15% or more of the Common Shares of the Company outstanding
at the close of business on January 14, 2000 or (ii) if SWIB is the Beneficial
Owner of 15% or more of the Common Shares of the Company outstanding at the
close of business on January 14, 2000, the next highest whole percentage in
excess of the percentage of Common Shares of the Company then outstanding
beneficially owned by SWIB.
4. Amendment to Definitions. The following definitions contained in
Section 1 of the Rights Agreement are hereby deleted in their entirety and
amended to read as follows:
"ACQUIRING PERSON" shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 15%
or more of the Common Shares then outstanding, but shall not include the
Company, any Subsidiary of the Company, SWIB unless and until SWIB shall have
become the Beneficial Owner of a percentage of Common Shares then outstanding
which equals or exceeds the SWIB Percentage at which such time SWIB shall be an
Acquiring Personor any employee benefit plan of the Company or of any Subsidiary
of the Company, or any entity holding Common Shares for or pursuant to the terms
of any such plan. Notwithstanding the foregoing, no Person shall be deemed to
be an Acquiring Person as the result of an acquisition of Common Shares by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more
(or, in the case of SWIB, to a percentage equal to or greater than the SWIB
Percentage)of the Common Shares of the Company then outstanding; PROVIDED,
HOWEVER, that if a Person shall become the Beneficial Owner of 15% or more (or,
in the case of SWIB, to a percentage equal to or greater than the SWIB
Percentage)of the Common Shares of the Company then outstanding by reason of
share purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares of the
Company (other than pursuant to a dividend or distribution paid or made by the
Company on the outstanding Common Shares in Common Shares or pursuant to a split
or subdivision of the outstanding Common Shares), then such Person shall be
deemed to be an Acquiring Person unless upon becoming the Beneficial Owner of
such additional Common Shares of the Company such Person does not beneficially
own 15% or more (or, in the case of SWIB, to a percentage equal to or greater
than the SWIB Percentage) of the Common Shares of the Company then outstanding.
Notwithstanding the foregoing, (i) if a majority of the Continuing Directors
then in office determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently (including, without limitation,
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because (A) such Person was unaware that it beneficially owned a percentage of
the Common Shares that would otherwise cause such Person to be an "Acquiring
Person," as defined pursuant to the foregoing provisions of this paragraph (a),
or (B) such Person was aware of the extent of the Common Shares it beneficially
owned but had no actual knowledge of the consequences of such beneficial
ownership under this Agreement) and without any intention of changing or
influencing control of the Company, and if such Person divested or divests as
promptly as practicable a sufficient number of Common Shares so that such Person
would no longer be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to be or
to have become an "Acquiring Person" for any purposes of this Agreement; and
(ii) if, as of the date hereof, any Person is the Beneficial Owner of 15% or
more (or, in the case of SWIB, to a percentage equal to or greater than the
SWIB Percentage)of the Common Shares outstanding, such Person shall not be or
become an "Acquiring Person," as defined pursuant to the foregoing provisions of
this paragraph (a), unless and until such time as such Person shall become the
Beneficial Owner of additional Common Shares (other than pursuant to a dividend
or distribution paid or made by the Company on the outstanding Common Shares in
Common Shares or pursuant to a split or subdivision of the outstanding Common
Shares), unless, upon becoming the Beneficial Owner of such additional Common
Shares, such Person is not then the Beneficial Owner of 15% or more (or, in the
case of SWIB, to a percentage equal to or greater than the SWIB Percentage) of
the Common Shares then outstanding.
"DISTRIBUTION DATE" shall mean the earlier of (i) the Close of Business
on the tenth day (or such later date as may be determined by action of a
majority of Continuing Directors then in office) after the Shares Acquisition
Date (or, if the tenth day after the Shares Acquisition Date occurs before the
Record Date, the Close of Business on the Record Date) or (ii) the Close of
Business on the tenth Business Day (or such later date as may be determined by
action of a majority of Continuing Directors then in office) after the date that
a tender or exchange offer by any Person (other than the Company, any Subsidiary
of the Company, SWIB unless and until SWIB shall have become the Beneficial
Owner of a percentage of Common shares then outstanding which equals or exceeds
the SWIB Percentage, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such plan) is
first published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if, assuming the
successful consummation thereof, such Person would be an Acquiring Person.
"TRIGGERING EVENT" shall be deemed to have occurred upon any Person
(other than the Company, any Subsidiary of the Company, SWIB unless and until
SWIB shall have become the beneficial Owner of a percentage of Common Shares
then outstanding which equals or exceeds the SWIB Percentage, any employee
benefit plan of the Company or any Subsidiary of the Company, or any entity
holding Common Shares for or pursuant to the terms of any such plan), becoming
an Acquiring Person.
5. Effective Date. This Amendment shall become effective as of the date
first above written but such effectiveness is contingent upon (a) the execution
of this Amendment by the Company and the delivery of Resolutions of the Board of
Directors of the Company authorizing and approving the Amendment; (b) delivery
of a certificate from an appropriate officer of the Company stating that this
Amendment is in compliance with Section 27 of the Rights Agreement; and (c) the
execution and delivery of this Amendment by the Rights Agent.
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6. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware without reference
to the conflicts or choice of law principles thereof.
7. Counterparts. This Amendment may be executed in separate counterparts,
each of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument.
8. Fax Transmission. A facsimile, telecopy or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of
this Amendment may be delivered by one or more parties hereto by facsimile or
similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of the Amendment as well as any facsimile, telecopy or other reproduction
thereof.
IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Amendment to be duly executed as of the day first above written.
FUSION MEDICAL TECHNOLOGIES, INC.
By: /S/ PHILLIP SAWYER
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Phillip Sawyer
Title: President and CEO
BANK BOSTON, N.A., as Rights Agent
By: /S/ JEFF ANDERSON
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Jeff Anderson
Title: Account Representative
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