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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SOFTWARE.COM, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 77-0392373
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(State of incorporation or organization (IRS Employer I.D. No.)
525 Anacapa Street, Santa Barbara, CA 93101
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(Address of principal executive offices)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates (if
applicable): Not applicable.
Securities to be registered pursuant to Section 12(b) of the Act:
None
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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Item 1. Description of Securities to be Registered.
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On August 8, 2000 pursuant to a Preferred Stock Rights Agreement (the
"Rights Agreement") between Software.com, Inc. (the "Company") and Wells
Fargo Bank Minnesota, N.A., as Rights Agent (the "Rights Agent"), the
Company's Board of Directors declared a dividend of one right (a "Right")
to purchase one one-thousandth of a share of the Company's Series A
Participating Preferred Stock, $0.001 par value ("Series A Preferred") for
each outstanding share of Common Stock, par value $0.001 per share ("Common
Shares"), of the Company. The dividend is payable on August 24, 2000 (the
"Record Date"), to stockholders of record as of the close of business on
that date. Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series A Preferred at an exercise
price of Six Hundred Dollars ($600.00) (the "Purchase Price"), subject to
adjustment.
The following summary of the principal terms of the Rights Agreement
is a general description only and is subject to the detailed terms and
conditions of the Rights Agreement. A copy of the Rights Agreement is
attached as Exhibit 4.8 to this Registration Statement and is incorporated
herein by reference.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date
(defined below). Certificates for the Rights ("Rights Certificates") will
not be sent to stockholders and the Rights will attach to and trade only
together with the Common Shares. Accordingly, Common Share certificates
outstanding on the Record Date will evidence the Rights related thereto,
and Common Share certificates issued after the Record Date will contain a
notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender or transfer of any certificates for Common Shares outstanding as
of the Record Date, even without notation or a copy of the Summary of
Rights being attached thereto, also will constitute the transfer of the
Rights associated with the Common Shares represented by such certificate.
Distribution Date
The Rights will separate from the Common Shares, Rights Certificates
will be issued and the Rights will become exercisable upon the earlier of
(a) the tenth day (or such later date as may be determined by the Company's
Board of Directors) following a public announcement that a person or group
of affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15% or more of
the Common Shares then outstanding or (b) the tenth business day (or such
later date as may be determined by the Company's Board of Directors) after
a person or group publicly announces a tender or exchange offer, the
consummation of which would result in the beneficial ownership by a person
or group of 15% or more of the Common Shares then outstanding. The earlier
of such dates is referred to as the "Distribution Date." Notwithstanding
the foregoing, the rights will not separate from the Common Stock and
become exercisable solely as a result of the consummation of the
transactions contemplated by the Agreement and Plan of Merger among the
Company, Phone.com, Inc. and Silver Merger Sub, Inc. dated as of August 8,
2000 (the "Merger Agreement"), the Software.com Voting Agreement or the
Software.com Option Agreement, each as defined in the Merger Agreement or
as a result of the execution and delivery of any of the foregoing
agreements.
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Issuance of Rights Certificates; Expiration of Rights
All Common Shares issued prior to the Distribution Date will be issued
with Rights. As soon as practicable following the Distribution Date,
separate Rights Certificates will be mailed to holders of record of the
Common Shares as of the close of business on the Distribution Date and such
separate Rights Certificates alone will evidence the Rights from and after
the Distribution Date. The Rights will expire on the earliest of (i) August
24, 2010, (the "Final Expiration Date"), (ii) redemption or exchange of the
Rights as described below, or (iii) the effectiveness of the merger
contemplated by the Merger Agreement.
Initial Exercise of the Rights
Following the Distribution Date, and until one of the further events
described below, holders of the Rights will be entitled to receive, upon
exercise and the payment of the Purchase Price, one one-thousandth of a
share of the Series A Preferred. In the event that the Company does not
have sufficient Series A Preferred available for all Rights to be
exercised, or the Board decides that such action is necessary and not
contrary to the interests of Rights holders, the Company may instead
substitute cash, assets or other securities for the Series A Preferred for
which the Rights would have been exercisable under this provision or as
described below.
Right to Buy Company Common Shares
Unless the Rights are earlier redeemed, in the event that an Acquiring
Person becomes the beneficial owner of 15% or more of the Company's Common
Shares then outstanding (other than actions taken by Phone.com, Inc. or any
of its Affiliates pursuant to the Merger Agreement, Software.com Voting
Agreement or the Software.com Option Agreement), then each holder of a
Right which has not theretofore been exercised (other than Rights
beneficially owned by the Acquiring Person, which will thereafter be void)
will thereafter have the right to receive, upon exercise, Common Shares
having a value equal to two times the Purchase Price. Rights are not
exercisable following the occurrence of an event as described above until
such time as the Rights are no longer redeemable by the Company as set
forth below.
Right to Buy Acquiring Company Stock
Similarly, unless the Rights are earlier redeemed, in the event that,
after an Acquiring Person becomes the beneficial owner of 15% or more of
the Company's Common Shares then outstanding, (i) the Company is acquired
in a merger or other business combination transaction (other than actions
taken by Phone.com, Inc. or any of its affiliates pursuant to the Merger
Agreement, Software.com Voting Agreement or the Software.com Option
Agreement), or (ii) 50% or more of the Company's consolidated assets or
earning power are sold (other than in transactions in the ordinary course
of business), proper provision must be made so that each holder of a Right
which has not theretofore been exercised (other than Rights beneficially
owned by the Acquiring Person, which will thereafter be void) will
thereafter have the right to receive, upon exercise, shares of common stock
of the acquiring company having a value equal to two times the Purchase
Price.
Exchange Provision
At any time after the acquisition by an Acquiring Person of 15% or
more of the Company's then outstanding Common Shares (other than actions
taken by Phone.com, Inc. or any of its Affiliates pursuant to the Merger
Agreement, Software.com Voting Agreement or the
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Software.com Option Agreement) and prior to the acquisition by such
Acquiring Person of 50% or more of the Company's outstanding Common Shares,
the Board of Directors of the Company may exchange the Rights (other than
Rights owned by the Acquiring Person), in whole or in part, at an exchange
ratio of one Common Share per Right.
Redemption
At any time on or prior to the close of business on the earlier of (i)
the fifth day (or such later date as may be determined by action of the
Company's Board of Directors) following the public announcement that an
Acquiring Person had acquired beneficial ownership of 15% or more of the
Company's then outstanding Common Shares by an Acquiring Person (other than
actions taken by Phone.com, Inc. or any of its affiliates pursuant to the
Merger Agreement, Software.com Voting Agreement or the Software.com Option
Agreement), or (ii) the Final Expiration Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.001 per Right.
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights, and the number of
Series A Preferred or Common Shares or other securities or property
issuable upon exercise of the Rights are subject to adjustment from time to
time in connection with the dilutive issuances by the Company as set forth
in the Rights Agreement. 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.
Cash Paid Instead of Issuing Fractional Shares
No fractional portion less than integral multiples of one Common Share
will be issued upon exercise of a Right and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Common Shares on the
last trading date prior to the date of exercise.
No Stockholders' Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company (other than any rights resulting
from such holder's ownership of Common Shares), including, without
limitation, the right to vote or to receive dividends.
Amendment of Rights Agreement
The terms of the Rights and the Rights Agreement may be amended in any
respect without the consent of the Rights holders on or prior to the
Distribution Date; thereafter, the terms of the Rights and the Rights
Agreement may be amended without the consent of the Rights holders in order
to cure any ambiguities or to make changes which do not adversely affect
the interests of Rights holders (other than the Acquiring Person).
Rights and Preferences of the Series A Preferred
Each one one-thousandth of a share of Series A Preferred has rights
and preferences substantially equivalent to those of one Common Share.
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Certain Anti-Takeover Effects
The Rights approved by the Board are designed to protect and maximize
the value of the outstanding equity interests in the Company in the event
of an unsolicited attempt by an acquirer to take over the Company in a
manner or on terms not approved by the Board of Directors. Takeover
attempts frequently include coercive tactics to deprive the Company's Board
of Directors and its stockholders of any real opportunity to determine the
destiny of the Company. The Rights have been declared by the Board in order
to deter such tactics, including a gradual accumulation of shares in the
open market of 15% or greater position to be followed by a merger or a
partial or two-tier tender offer that does not treat all stockholders
equally. These tactics unfairly pressure stockholders, squeeze them out of
their investment without giving them any real choice and deprive them of
the full value of their shares.
The Rights are not intended to prevent a takeover of the Company and
will not do so. Subject to the restrictions described above, the Rights may
be redeemed by the Company at $0.001 per Right at any time prior to the
Distribution Date. Accordingly, the Rights should not interfere with any
merger or business combination approved by the Board of Directors.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed undesirable by the Board
of Directors. The Rights may cause substantial dilution to a person or
group that attempts to acquire the Company on terms or in a manner not
approved by the Company's Board of Directors, except pursuant to an offer
conditioned upon the negation, purchase or redemption of the Rights.
Issuance of the Rights does not in any way weaken the financial
strength of the Company or interfere with its business plans. The issuance
of the Rights themselves has no dilutive effect, will not affect reported
earnings per share, should not be taxable to the Company or to its
stockholders, and will not change the way in which the Company's shares are
presently traded. The Company's Board of Directors believes that the Rights
represent a sound and reasonable means of addressing the complex issues of
corporate policy created by the current takeover environment.
Item 2. Exhibits
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3.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-76263) as declared effective in the
Securities and Exchange Commission on June 22, 1999).
3.3 Bylaws of the Registrant (incorporated by reference to the
Registrant's Registration Statement on Form S-1 (File No. 333-76263)
as declared effective in the Securities and Exchange Commission on
June 22, 1999).
3.4 Certificate of Designation of Rights, Preferences and Privileges of
Series A Participating Preferred Stock of Registrant (incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2000).
4.8 Preferred Stock Rights Agreement, dated as of August 10, 2000, between
the Registrant and Wells Fargo Bank Minnesota, N.A., including the
Certificate of Designation, the form of Rights Certificate and the
Summary of Rights attached thereto as Exhibits A, B,
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and C, respectively (incorporated by reference to Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30, 2000).
4.9 Specimen Common Stock Certificate (incorporated by reference to
Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000).
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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 Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: August 17, 2000 Software.com, Inc.
By: /s/ Craig A. Shelburne
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Craig A. Shelburne
Senior Vice President and General Counsel
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