UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
INFOWAVE SOFTWARE, INC.
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(Exact name of Registrant as specified in its charter)
British Columbia, Canada 98-0183915
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(State of incorporation (I.R.S. Employer Identification No.)
or organization)
4664 Lougheed Highway, Suite 200
Burnaby, British Columbia V5C 5T5
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(Address of Principal Executive (Zip Code)
Offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which each
to be so registered class is to be registered
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None N/A
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), please 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), please check the following box. [X]
Securities Act registration statement file number to which this form relates:
None (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Common Share Purchase Rights
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
On June 5, 2000, Infowave Software, Inc. (the "Corporation") adopted a
shareholder rights plan (the "Plan") to ensure the fair and equal treatment of
all of its shareholders in the event of a Take-over Bid, in which a person,
group of affiliated or associated persons, or entity (a "Person") offers to
acquire Voting Shares of the Corporation (as defined below) resulting in that
Person possessing 20% or more of the outstanding Voting Shares of the
Corporation, and to allow the board of directors of the Corporation (the
"Board") and its shareholders adequate time to assess and respond to such a bid.
In order to implement the Plan, upon adoption of the Plan, the Corporation
issued to each shareholder of record at the close of business on June 5, 2000
(the "Record Time") one right (a "Right") in respect of each outstanding Common
Share to holders of record at the Record Time. In addition, one Right will be
issued in respect of each Common Share issued after the Record Time and prior to
the earlier of the Separation Time (as defined below) and the Expiration Time
(as defined below). The Corporation has entered into a Shareholder Rights Plan
Agreement dated as of June 5, 2000 (the "Rights Agreement") with Montreal Trust
Company of Canada, as Rights Agent, regarding the exercise of the Rights, the
issuance of certificates evidencing the Rights as well as other related matters.
The Rights are not exercisable initially and certificates representing the
Rights will not be sent to shareholders. Until the Separation Time, (i) the
Rights will be evidenced by the Common Share certificates and will be
transferred with and only with such certificates, (ii) new Common Share
certificates issued after the Record Time will contain a notation incorporating
the Rights Agreement by reference and (iii) the surrender for transfer of any
certificates for Common Shares outstanding will also constitute the transfer of
Rights represented by such certificates. Each Right has an exercise price of
Cdn.$1,000.00 (the "Exercise Price"), subject to adjustment.
Subject to certain limitations, the Rights will detach from the Common
Shares and will become exercisable upon the earlier of ten (10) business days
following (i) a public announcement that a person or group of affiliated or
associated persons, has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding Common Shares and any other
securities the holders of which are entitled to vote generally on the election
of the Directors of the Corporation ("Voting Shares") (other than as a result of
certain redemptions of Common Shares by the Corporation, Permitted Bid
acquisitions, exempt acquisitions, convertible security acquisitions, pro rata
acquisitions or pursuant to a waiver by the Board (hereinafter referred to as
"Permissible Acquisitions")) (an "Acquiring Person"), (ii) the commencement of,
or first public announcement of the intent to begin, a Take-over Bid, (iii) the
date a Permitted Bid ceases to be a Permitted Bid or (iv) such later date as may
be determined by the Board (the earliest of all such dates referred to as the
"Separation Time"). Notwithstanding the foregoing, the Separation Time may be no
earlier then the Record Time.
The Rights are not exercisable until the Separation Time. The Rights will
expire, however, at the earlier of (i) the termination of the annual meeting of
shareholders of the Corporation in 2003, or (ii) the Termination Time, as
defined by various sections of the Plan (collectively, the "Expiration Time"),
unless the Rights are earlier redeemed by the Corporation in accordance with
Plan. If at or prior to the annual meeting of the shareholders of the
Corporation in 2003 a Flip-In Event (as defined below) has not occurred, the
Board shall submit a resolution ratifying the continued existence of the Rights
Agreement to the Independent Shareholders of the Corporation (as defined below)
until the earlier of (i) the Termination Time or (ii) the termination of the
annual meeting of shareholders of the Corporation in 2006. Unless a majority of
holders of Voting Shares of the Corporation, excluding certain persons and
entities as described in the Plan (the "Independent Shareholders"), vote in
favor of the Rights Agreement, the Board shall redeem the Rights at the
Redemption Price (as defined below).
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As soon as practicable after the Separation Time, Rights certificates will
be mailed to (i) holders of record of Common Shares as of the Separation Time
and (ii) holders of convertible securities converted into Common Shares after
the Separation Time and prior to the Expiration Time following such conversion
by the holder and, thereafter, the separate Rights certificates alone will
represent the Rights.
Ten (10) business days after a person acquires 20% or more of the Voting
Shares of the Corporation after the date of the Rights Agreement (a "Flip-In
Event"), other than through a Permissible Acquisition, each holder of a Right
will thereafter have the right to receive, upon exercise, that number of Common
Shares having a value equal to two times the Exercise Price. Notwithstanding any
of the foregoing, following the occurrence of any of the events set forth in
this paragraph, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any Acquiring Person will
be null and void.
A person or group of affiliated or associated persons will not trigger the
separation and exercisability of the Rights if that person or group of
affiliated or associated persons becomes the beneficial owner of 20% or more of
the Voting Shares as a result of a Permissible Acquisition. If such person or
group of affiliated or associated persons becomes the beneficial owner of 20% or
more of the Voting Shares by such means and subsequently acquires additional
Voting Shares constituting more than 1% of the Voting Shares outstanding, other
than by a Permissible Acquisition, however, then, as of the date of such
additional acquisition, that person or group of affiliated or associated persons
shall be deemed an Acquiring Person and the separation and exercisability of the
Rights will be triggered.
Any person or group of affiliated or associated persons who was the
beneficial owner of 20% or more of the outstanding Common Shares on the Record
Time will be "grandfathered" so that the dilutive effects of the Rights will not
be triggered, unless such person or group of affiliated or associated persons
subsequently increases their shareholdings of the Common Shares of the
Corporation by more than 1%, other than through a Permissible Acquisition. As of
the Record Time, Gary McIntosh (a director of the Corporation) and Jim McIntosh
(a current director of the Corporation and, as of the Record Time, the
President, Chief Executive Officer and a director of the Corporation), father
and son, collectively beneficially owned 20.9% of the outstanding Common Shares.
Other than the Common Shares owned by Gary McIntosh and Jim McIntosh, the
Corporation is not aware, as of June 5, 2000, that any person or related group
of affiliated or associated persons is the beneficial owner of 20% or more of
the outstanding Common Shares.
The Exercise Price payable, the number and kind of Common Shares or other
securities subject to purchase upon exercise of each Right and the number of
Rights outstanding are subject to adjustment from time to time to prevent
dilution, including (i) in the event of a stock dividend on, or exchange of,
Common Shares where Voting Shares are issued, (ii) a subdivision or
consolidation of Common Shares, (iii) if holders of Common Shares are granted
certain rights, options or warrants to subscribe for Common Shares or
convertible securities at less than 90% of the market price of the Common Shares
or (iv) upon the distribution to holders of Common Shares of evidences of
indebtedness, cash or assets (excluding regular periodic cash dividends or a
dividend paid in Common Shares) or of subscription rights, options or warrants
entitling them to purchase Voting Shares at less than 90% of the market price
per Common Share on such record date (other than those referred to above).
The Exercise Price is payable by certified cheque, banker's draft or money
order payable to the order of the Montreal Trust Company of Canada.
At any time prior to the occurrence of a Flip-in Event, the Board (with the
prior consent of the holders of Voting Shares or of the holders of Rights, if
the proposed redemption is after the Separation Time, given by the affirmative
vote of a majority of the votes cast by Independent Shareholders
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represented in person or by proxy at a meeting of such holders) may elect to
redeem all, but not part, of the outstanding Rights at a redemption price of
$0.00001 per Right, subject to appropriate adjustment in certain events (the
"Redemption Price"). The Rights Agreement also gives the Board the right, in
certain circumstances, subject to the prior consent of the holders of Voting
Shares in some situations, to waive the application of the dilutive effects
described above prior to the occurrence of a particular Flip-In Event.
As discussed above, a Take-over Bid that fits the criteria of a Permitted
Bid or a Competing Permitted Bid will not trigger the dilutive effects of the
Rights. A Permitted Bid is a Take-over Bid made by way of a take-over bid
circular, and which also complies with the following conditions:
(i) the Take-over Bid is made to all holders of Voting Shares other
than the person, group of affiliated or associated persons or
entity who has announced a current intention to make or is making
a Take-over Bid (the "Offeror");
(ii) the Take-over Bid contains, and the take-up and payment for
securities tendered or deposited is subject to, an irrevocable
and unqualified provision that no Voting Shares will be taken up
or paid for pursuant to the Take-over Bid prior to the close of
business on the date which is not less than 45 days following the
date of the Take-over Bid;
(iii) the Take-over Bid contains irrevocable and unqualified provisions
that unless the Take-over Bid is withdrawn, Voting Shares may be
deposited pursuant to such Take-over Bid at any time prior to the
close of business on the date of first take-up or payment for
Voting Shares and that all Voting Shares deposited pursuant to
the Take-over Bid may be withdrawn at any time prior to the close
of business on such date;
(iv) the Take-over Bid shall contain an irrevocable and unqualified
condition that more than 50% of the outstanding Voting Shares
held by Independent Shareholders, determined as at the date of
first take-up or payment for Voting Shares under the Take-over
Bid, must be deposited pursuant to the Take-over Bid and not
withdrawn at the close of business on the date of first take-up
or payment for Voting Shares; and
(v) the Take-over Bid contains irrevocable and unqualified provisions
that if, on the date on which Voting Shares may be taken up and
paid for, more than 50% of the Voting Shares held by Independent
Shareholders shall have been deposited pursuant to the Take-over
Bid and not withdrawn, the Offeror will make a public
announcement of that fact and the Take-over Bid will remain open
for deposits and tenders of Voting Shares for not less than ten
(10) business days from the date of such public announcement.
A Competing Permitted Bid is a Take-over Bid that:
(i) is made while another Permitted Bid is in existence;
(ii) satisfies all the provisions of a Permitted Bid other than the
condition set out in (ii) above; and
(iii) contains, and the take-up and payment for securities tendered or
deposited is subject to, an irrevocable and unqualified provision
that no Voting Shares will be taken up or paid for pursuant to
the Take-over Bid prior to the close of business on the date that
is no earlier than the later of
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(A) the earliest date on which Voting Shares may be taken up or
paid for under any earlier Permitted Bid or Competing
Permitted Bid that is then in existence; and
(B) 21 days after the date of the Take-over Bid constituting the
Competing Permitted Bid.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Corporation, including, without limitation, the
right to vote or to receive dividends.
The Corporation may from time to time amend the Rights Agreement without
the approval of the holders of the Voting Shares or Rights to correct any
clerical or typographical errors and to address changes in any applicable
legislation, rules or regulations. Prior to the date of the meeting of
shareholders to approve the Rights Agreement, the Corporation may make any
changes that the Board acting in good faith may deem necessary or advisable.
Following the approval of the Rights Agreement by the shareholders, the
Corporation may only make changes to the Rights Agreement with the prior consent
of the holders of Voting Shares and Rights, other than as stated above.
As of June 5, 2000, there were outstanding 19,230,041 Common Shares of the
Corporation. Each Common Share outstanding at the close of business on June 5,
2000 will receive one Right. As long as the Rights are attached to the Common
Shares, the Corporation will issue one Right for each Common Share that becomes
outstanding between June 5, 2000, and the earlier of the Separation Time and the
Expiration Time so that all such shares will have attached Rights.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person, group of affiliated or associated persons or
entity that attempts to acquire the Corporation, other than by way of a
Permitted Bid, or on terms not approved by the Board. The Rights should not,
however, substantially affect any prospective Offeror willing to negotiate with
the Board or comply with the Permitted Bid provisions of the Plan, other than
through a possible delay.
The Rights Agreement between the Corporation and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the Form of
Rights certificate, is attached hereto as Exhibit 1 and is incorporated herein
by reference. The foregoing description of the Rights does not purport to be
complete, and is qualified in its entirety by reference to such Exhibit.
Item 2. Exhibits.
Exhibit
Number Description
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1 Form of Shareholder Rights Plan Agreement, dated as of June 5,
2000, between Infowave Software, Inc. and Montreal Trust Company
of Canada, which includes as Exhibit A thereto the Form of Rights
Certificate.
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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.
INFOWAVE SOFTWARE, INC.
By: /s/ BIJAN SANII
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Name: Bijan Sanii
Title: Chief Operating Officer
Acting President and Chief Executive
Officer
Dated: July 12, 2000
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EXHIBIT INDEX
Exhibit
Number Description
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1 Form of Shareholder Rights Plan Agreement, dated as of June 5,
2000, between Infowave Software, Inc. and Montreal Trust Company
of Canada, which includes as Exhibit A thereto the Form of Rights
Certificate.
