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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
REGISTRATION STATEMENT ON
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
REALNETWORKS, INC.
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1628146
(State of incorporation or organization) (I.R.S. Employer Identification No.)
2601 ELLIOT AVENUE, SUITE 1000
SEATTLE, WASHINGTON 98121
(Address of principal executive offices, including Zip Code)
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 to be registered pursuant to Section 12(g) of the Act:
Title of each class Name of each exchange on which
to be so registered: each class is to be registered:
PREFERRED STOCK PURCHASE RIGHTS NASDAQ NATIONAL MARKET
Securities to be registered pursuant to Section 12(b) of the Act: None.
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
On January 21, 2000, RealNetworks, Inc. (the "Company") and ChaseMellon
Shareholder Services, L.L.C. (the "Rights Agent") entered into Amendment No. 1
dated January 21, 2000 (the "Amendment") to the Shareholder Rights Plan dated
December 4, 1998 (the "Rights Plan"), which Amendment is attached as Exhibit 1
to this amended Registration Statement. The Company hereby amends its
Registration Statement on Form 8-A as originally filed with the Securities and
Exchange Commission on December 14, 1998 and as subsequently amended on June 16,
1999. The purpose of this amendment is to amend Section 23 and Section 27 of the
Rights Plan to eliminate certain "continuing director" provisions which
restricted the ability of newly elected directors to redeem the outstanding
rights and amend the Rights Plan in connection with a change in control. The
following is a summary of the Rights (defined below) as amended by Amendment No.
1 to the Shareholder Rights Plan.
On October 16, 1998, the Board of Directors of the Company declared a
dividend distribution of one preferred stock purchase right (each a "Right") for
each outstanding share of Common Stock, par value $0.001 per share, of the
Company (the "Common Shares"), payable to the holders of record of the Common
Shares on December 14, 1998 (the "Record Date"). The Rights dividend was
declared by the Board of Directors in connection with its adoption of the Rights
Plan, attached as Exhibit 2. to this amended Registration Statement.
Until the earliest to occur of (i) a public announcement that, without
the prior approval of the Board of Directors of the Company, a person or group,
including any affiliates or associates of such person or group (an "Acquiring
Person"), acquired, or obtained the right to acquire, beneficial ownership of
fifteen percent or more of the outstanding Common Shares (the "Shares
Acquisition Date") or (ii) ten business days (or such later date as the Board
may determine) following the commencement or announcement of an intention (which
is not subsequently withdrawn within five business days after such announcement)
to make a tender offer or exchange offer which would result in any person or
group (and related persons) having beneficial ownership of fifteen percent or
more of the outstanding Common Shares without the prior consent of the Board of
Directors (the earliest of such dates being called the "Distribution Date"), the
Rights will be attached to all Common Share certificates and will be evidenced
by the Common Share certificates. The Rights Plan provides that, until the
Distribution Date, the Rights will be transferred with and only with the Common
Shares. Until the Distribution Date (or earlier redemption or expiration of the
Rights), new Common Share certificates issued after the Record Date upon
transfer, replacement or new issuance of Common Shares will contain a legend
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), the surrender for
transfer of any Common Share certificates outstanding as of the Record Date,
even without such a notation, will also constitute the transfer of the Right
associated with each of the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the
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Rights ("Rights Certificates") will be sent by first class mail to holders of
record of the Common Shares as of the close of business on the Distribution
Date, and the separate Rights Certificates alone will evidence the Rights and
the Rights will be separately transferable from the Common Shares.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on December 4, 2008, unless earlier redeemed or exchanged by the
Company as described below.
The preferred stock purchasable upon exercise of the Rights is
nonredeemable and junior to any other series of preferred stock the Company may
issue (unless otherwise provided in the terms of the Company's Articles of
Incorporation, as such may be amended from time to time). Each share of
preferred stock will have a preferential quarterly dividend in an amount equal
to 1,000 times the dividend declared on each Common Share. In the event of
liquidation, the holders of Preferred Stock will receive a preferred liquidation
payment per share equal to 1,000 times the payment made to each Common Share.
Each share of preferred stock will have 1,000 votes, voting together with the
Common Shares unless otherwise required by law. In the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each
share of preferred stock will be entitled to receive 1,000 times the amount and
type of consideration received per Common Share. The rights of the preferred
stock as to dividends, liquidation and voting, and mergers and consolidations,
are protected by customary anti-dilution provisions. Fractional shares of
preferred stock may be issued and such fractional shares shall entitle the
holder thereof, in proportion to such holder's fractional shares, to have the
benefit of all other rights of holders of preferred stock.
In the event that any person becomes an Acquiring Person, each holder of
a Right generally will thereafter have the right for a sixty day period after
the later of the date of such event and the effectiveness of an appropriate
registration statement (or such other longer period set by the Board of
Directors) to receive upon exercise of the Right that number of Common Shares
(or, in the discretion of the Board of Directors, one one-thousandths of a
preferred share or other securities or property) having a market value of two
times the exercise price of the Right (such right being called the "Subscription
Right"). Notwithstanding the foregoing, following the occurrence of a person
becoming an Acquiring Person, all Rights that are, or under certain
circumstances specified in the Rights Plan were, beneficially owned by the
Acquiring Person will be null and void.
In the event that, at any time on or following the Shares Acquisition
Date, the Company is acquired in a merger or other business combination
transaction (whether or not the Company is the surviving entity) or 50% or more
of the Company's assets or earning power are sold (in one transaction or a
series of transactions), proper provision shall be made so that each holder of a
Right (except Rights that have been rendered void under the Rights Plan) shall
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the acquiring company (or, in the event there is more than one acquiring
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company, the acquiring company receiving the greatest portion of the assets or
earning power transferred) which at the time of such transaction would have a
market value of two times the exercise price of the Right (such right being
called the "Merger Subscription Right"). The holder of a Right will continue to
have the Merger Subscription Right whether or not such holder exercises the
Merger Subscription Right.
The Purchase Price payable, the number of Rights and the number of
shares of Preferred Stock, Common Shares or other securities or property
issuable, upon exercise of the Rights are subject to adjustment form 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 of certain rights or warrants to
subscribe for Preferred Stock, certain convertible securities or securities
having the same or more favorable rights, privileges and preferences as the
Preferred Stock at less than the 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 quarterly cash dividends out of
earnings or retained earnings and dividends payable in Preferred Stock or of
subscription rights or warrants (other than those referred to above). With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least one percent in such
Purchase Price.
If at any time following the Record Date the Company shall pay a
dividend on the Common Shares in the form of Common Shares or effect a
subdivision, combination or consolidation of the outstanding Common Shares into
a greater or lesser number of Common Shares, then each outstanding Common Share
following such event shall continue to have one Right associated with it and the
exercise price of each Right will be proportionately adjusted.
At any time prior to the earliest to occur of (i) the close of business
on the Shares Acquisition Date or (ii) the expiration of the Rights, the Company
may redeem the Rights in whole, but not in part, at a price of $.01 per Right
(the "Redemption Price"), which redemption shall be effective immediately upon
the action of the Board of Directors. Additionally, following the Shares
Acquisition Date and the expiration of the period during which the Subscription
Right is exercisable, the Company may redeem the then outstanding Rights in
whole, but not in part, at the Redemption Price (i) in connection with any
merger, consolidation or sale or other transfer of fifty percent or more of the
Company's assets or earning power (a "Transaction") in which all holders of
Common Shares are treated alike and such Transaction does not involve an
Acquiring Person or (ii) if the Acquiring Person would not, as a result of such
redemption, obtain beneficial ownership of fifty percent or more of the Common
Shares and there exists no other Acquiring Person at the time of such
redemption. The Company may, at its option, pay the Redemption Price in Common
Shares or cash. Upon the effective date of the redemption of the Rights, the
right to exercise the Rights will terminate and the only right of Rights holders
will be to receive the Redemption Price.
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Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including the right to vote or to
receive dividends or any other incidents of ownership associated with the Common
Shares.
The Board of Directors of the Company may, at its option, after there
exists an Acquiring Person, exchange all or part of the then outstanding Rights
(other than those held by the Acquiring Person) for Common Shares at an exchange
ratio of one Common Share per Right, as such exchange ratio may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the Record Date. Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time after any
the Acquiring Person becomes the beneficial owner of 50% or more of the Common
Shares then outstanding. Immediately upon the action of the Board of Directors
of the Company ordering the exchange of any Rights, the right to exercise such
Rights shall terminate. The Board of Directors, at its option, may substitute
preferred stock for some or all of the Common Shares exchangeable for the
Rights.
Except as set forth above, the terms of the Rights may be amended by the
Board of Directors of the Company without the approval of the Rights holders,
(i) prior to the Distribution Date in any manner and (ii) on or after the
Distribution Date to cure any ambiguity, to correct or supplement any provision
of the Rights Agreement which may be defective or inconsistent with any other
provisions, or in any manner not adversely affecting the interests of the
holders of the Rights (excluding the interests of any Acquiring Person), or,
subject to certain limitations, to shorten or lengthen any time period under the
Rights Agreement.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired. However, the Rights generally should not
interfere with any merger or other business combination approved by the Board of
Directors.
The foregoing description of the Rights Plan and the Rights is qualified
in its entirety by reference to the Rights Plan attached as Exhibit 2 hereto and
Amendment No. 1 to the Rights Plan attached as Exhibit 1 hereto, both of which
are incorporated by reference herein.
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Item 2. Exhibits.
1. Amendment No. 1 to the Shareholder Rights Plan, dated as of
January 21, 2000 between RealNetworks Inc., and ChaseMellon
Shareholder Services, L.L.C.
*2. Shareholder Rights Plan, dated as of December 14, 1998 between
RealNetworks, Inc. and ChaseMellon Shareholder Services, L.L.C.,
which includes, as Exhibit A thereto, the form of Certificate of
Designation specifying the terms of the Series A Preferred Stock,
as Exhibit B thereto, the form of Rights Certificate, and, as
Exhibit C thereto, the form of Rights Summary.
-------------------
* Previously Filed
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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.
REALNETWORKS, INC.
January 21, 2000
By /s/ Kelly Jo MacArthur
-------------------------------------
Kelly Jo MacArthur
Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
1. Amendment No. 1 to the Shareholder Rights Plan, dated as of
January 21, 2000 between RealNetworks Inc., and ChaseMellon
Shareholder Services, L.L.C.
*2. Shareholder Rights Plan, dated as of December 14, 1998 between
RealNetworks, Inc. and ChaseMellon Shareholder Services, L.L.C.,
which includes, as Exhibit A thereto, the form of Certificate of
Designation specifying the terms of the Series A Preferred Stock,
as Exhibit B thereto, the form of Rights Certificate, and, as
Exhibit C thereto, the form of Rights Summary.
</TABLE>
-------------------
* Previously Filed
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EXHIBIT 1
AMENDMENT NO. 1 DATED AS OF JANUARY 21, 2000
TO SHAREHOLDER RIGHTS PLAN
BETWEEN REALNETWORKS, INC. AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
WHEREAS, RealNetworks, Inc. (the "Company") and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent"), entered into the
Shareholder Rights Plan dated as of December 4, 1998 (the "Rights Agreement");
WHEREAS, the Rights Agreement contains terms restricting the ability of
the Company's Board of Directors to amend the Rights Agreement or redeem the
Rights (as defined in the Rights Agreement) issued thereunder under certain
circumstances;
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company and its shareholders to amend the Rights
Agreement to remove such terms as set forth herein;
WHEREAS, Section 27 of the Rights Agreement permits the Company to amend
the Rights Agreement in any respect without approval of the holders of rights
prior to the Distribution Date (as therein defined);
WHEREAS, the Distribution Date has not occurred;
WHEREAS, the Board of Directors of the Company authorized and approved
this Amendment at a Meeting of the Board of Directors of the Company on April
7-8, 1999; and
WHEREAS, the Rights Agent has agreed to the amendment of the Rights
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Rights Agreement, the parties hereto hereby agree as
follows:
1. Amendment of Rights Agreement.
(a) Section 23(b) of the Rights Agreement (concerning redemption)
is deleted in its entirety;
(b) Section 27 of the Rights Agreement (concerning amendments) is
hereby amended to read in its entirety as follows:
Section 27. Supplements and Amendments. Subject to the
penultimate sentence of this Section 27, prior to the Distribution Date, the
Corporation and the Rights Agent shall, if the Corporation so directs,
supplement or amend any provision of this Agreement without the approval of any
holders of certificates representing Common Shares. Subject to the penultimate
sentence of this Section 27, from and after the Distribution Date, the
Corporation and the Rights Agent shall, if
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the Corporation so directs, supplement or amend this Agreement without the
approval of any holders of Right Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder or (iv) to change or supplement
the provisions hereunder in any manner which the Corporation may deem necessary
or desirable and which shall not adversely affect the interests of the holders
of Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, however, that this Agreement may
not be supplemented or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Corporation which states that the
proposed supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment, provided that
such supplement or amendment does not adversely affect the rights or obligations
of the Rights Agent under this Agreement. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Shares.
2. No Other Changes. Except as expressly amended hereby, the Rights
Agreement shall remain in full force and effect.
3. Direction of Company. Pursuant to Section 27 of the Rights Agreement,
the Company directs the Rights Agent to execute this Amendment.
4. Counterparts. 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 one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
REALNETWORKS, INC.
By: /s/ Robert Glaser
------------------------------------
Name: Robert Glaser
Title: Chief Executive Officer
CHASEMELLON SHAREHOLDER SERVICES,
L.L.C., as Rights Agent
By: /s/ Thomas L. Cooper
------------------------------------
Name: Thomas L. Cooper
Title: Assistant Vice President
