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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
Amendment No. 5
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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SUN MICROSYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-2805249
(State of Incorporation) (I.R.S. Employer
Identification Number)
2550 Garcia Avenue
Mountain View, California 94043-1100
(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to be registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON SHARE PURCHASE RIGHTS
(Title of Class)
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Item 1. Description of Securities to be Registered.
On April 26, 1989, the Board of Directors of Sun Microsystems, Inc. (the
"Company") declared a dividend of one common share purchase right (a "Right")
for each outstanding share of Common Stock, $.00067 par value (the "Common
Shares"), of the Company. The dividend was paid on May 26, 1989 (the "Record
Date") to stockholders of record as of the close of business on that date, and
Rights have been issued in connection with all Common Shares issued since that
date. Each Right entitles the registered holder to purchase from the Company one
Common Share at a price of $200.00 (the "Purchase Price"). The $200.00 Purchase
Price set forth herein does not give effect to the Company's recently announced
two-for-one stock split, declared by the Company's Board of Directors on
November 2, 1995 in the form of a stock dividend issuable to holders of record
on November 20, 1995 (the "Recent Stock Split"). The Purchase Price is subject
to adjustment from time to time as a result of certain events set forth in the
Amended Rights Agreement, as defined below, including the Recent Stock Split.
The description and terms of the Rights are set forth in a First Amended and
Restated Common Shares Rights Agreement dated as of December 14, 1990 between
the Company and The First National Bank of Boston as Rights Agent (the "Amended
Rights Agreement"), as amended by the Amendment dated as of October 2, 1991 (the
"First Amendment"), the Second Amendment dated August 5, 1992 (the "Second
Amendment"), the Third Amendment dated November 2, 1994 (the "Third Amendment")
and the Fourth Amendment dated November 1, 1995 (the "Fourth Amendment").
The following is a general description only and is subject to the detailed
terms and conditions of the Amended Rights Agreement, the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment. A copy of the
Amended Rights Agreement, including the form of Rights Certificate and the
Summary of Terms provided to stockholders of the Company, the First Amendment,
the Second Amendment, the Third Amendment and the Fourth Amendment, are attached
or incorporated as Exhibits 1, 2, 3, 4 and 5, respectively, to this Registration
Statement and are 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") have not been, and
until after the Distribution Date will not be, sent to stockholders. Until after
the Distribution Date, Rights will remain attached to and trade only together
with the Common Shares. Accordingly, Common Share certificates outstanding on
the Record Date evidence the Rights related thereto, and Common Share
certificates issued after the Record Date contain a notation incorporating the
Amended 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 or after the Record Date, even
without notation or a copy of the Summary of Terms being attached thereto, also
constitutes the transfer of the Rights associated with the Common Shares
represented by such certificates.
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: (i) 10
days (or such later date as may be determined by a majority of the Board of
Directors, excluding directors affiliated with the
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Acquiring Person, as defined below (the "Continuing Directors")) following a
public announcement (which for purposes of this definition shall include,
without limitation, a report filed pursuant to Section 13(d) under the Exchange
Act, except as set forth below) by the Company or an Acquiring Person that an
Acquiring Person has become such, provided that, if such person is determined
not to have become an Acquiring Person pursuant to the definition of Acquiring
Person below, then no acquisition shall be deemed to have occurred or (ii) 10
business days (or such later date as may be determined by a majority of the
Continuing Directors) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 30% or more of
the outstanding Common Shares. The earlier of such dates is referred to as the
"Distribution Date."
"Acquiring Person" shall mean any person who or which, together with all
affiliates and associates of such person, shall be the beneficial owner of 10%
or more of the Common Shares then outstanding, but shall not include the
Company. No person shall become an "Acquiring Person" if 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 10% or more of the Common Shares of the Company then
outstanding; provided, however, that if a person shall become the beneficial
owner of 10% or more of the Common Shares of the Company then outstanding by
reason of share purchases by the Company and shall, after such purchases by the
Company, become the beneficial owner of any additional Common Shares of the
Company, then such person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, no person shall become an "Acquiring Person" if
such person would have become an "Acquiring Person" inadvertently but for the
operation of this sentence and such person is the beneficial owner of less than
10% of the outstanding Common Shares within five trading days after
communicating to the Board of Directors of the Company such person's Common
Shares ownership position and the inadvertent nature of that position.
In addition, notwithstanding the foregoing, a person or group of affiliated
or associated persons who acquires or obtains the right to acquire beneficial
ownership of 10% or more but less than 20% of the Common Shares then outstanding
AND files a Schedule 13G rather than a Schedule 13D in accordance with Section
13(d) or Rule 13(d)(1) of the Exchange Act with respect to such Common Shares
shall not be deemed to have acquired "beneficial ownership" of such Common
Shares for purposes of the Amended Rights Agreement and therefore, will not be
deemed to be an "Acquiring Person" under the Amended Rights Agreement, but only
for so long as such person or group beneficially owns less than 20% of the then
outstanding Common Shares or is not otherwise required to file a Schedule 13D
under the Exchange Act, as may be determined by the Board of Directors.
Issuance of Rights Certificates; Expiration of 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. Unless
otherwise specified by the Board of Directors at the time of issuance, all
Common Shares issued prior to the Distribution Date will be issued with Rights.
Common Shares issued after the Distribution Date may be issued with Rights if
such shares are issued (i) upon the conversion of securities issued after
adoption of the original Common Shares Rights
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Agreement (dated as of May 15, 1989) or (ii) pursuant to the exercise of stock
options or under employee benefit plans or pursuant to the conversion of the
Company's outstanding convertible subordinated debentures unless such issuance
would result in (or create a risk of) such options, plans or debentures failing
to qualify for otherwise available special tax treatment. Except as otherwise
determined by the Board of Directors, no other Common Shares issued after the
Distribution Date will be issued with Rights. The Rights will expire on the
earliest of (i) May 25, 1999 (the "Final Expiration Date"), (ii) redemption or
exchange of the Rights as described below or (iii) consummation of an
acquisition of the Company satisfying certain conditions by a person who
acquired shares pursuant to a Permitted Offer as described below.
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 $200.00 per Right, one Common Share.
Protection Against Certain Acquisitions Not Negotiated with the Board of
Directors; Right to Buy Common Shares at Half Price
Unless the Rights are earlier redeemed, in the event that a person becomes
the beneficial owner of 10% or more of the Company's Common Shares then
outstanding (other than pursuant to a tender offer deemed fair by the Board of
Directors (a "Permitted Offer")), then proper provision will 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, Common Shares
having a value equal to two times the Purchase Price. Rights are not exercisable
following the occurrence of the event set forth above until the Distribution
Date.
In the event that the Company does not have sufficient Common Shares
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 Common Shares
into which the Rights would have been exchangeable under this provision or as
described below.
Protection Against Certain Unfair Two-Step or Coercive Transactions; Right to
Buy Acquiring Company Stock at Half Price
Similarly, unless the Rights are earlier redeemed, in the event that, after
the Distribution Date, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving corporation or
in which the Company's outstanding Common Shares are changed or exchanged for
stock or assets of another person or (ii) 50% or more of the Company's
consolidated assets or earning power is sold (other than in transactions in the
ordinary course of business), proper provision will 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
(unless the transaction satisfies certain conditions and is consummated with a
person who acquired shares pursuant to a Permitted Offer, in which case the
Rights will expire).
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Exchange Provision
At any time after the acquisition by an Acquiring Person of beneficial
ownership of 10% or more of the Company's outstanding Common Shares 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 (subject to
adjustment).
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights and the number of Common
Shares or other securities or property issuable upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution as set forth in the
Amended 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.
Redemption
At any time on or prior to the close of business on the earlier of (i) ten
days (or such later date as may be determined by the Continuing Directors) after
the accumulation of beneficial ownership of 10% or more of the Company's shares
by a single acquiror or group or (ii) the Final Expiration Date of the Rights,
the Company may redeem the Rights in whole, but not in part, at a price of $.0l
per Right ("Redemption Price"). Immediately upon the action of the Board of
Directors ordering 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.
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 Amended Rights Agreement
The provisions of the Amended Rights Agreement may be supplemented or
amended by the Board of Directors in any manner prior to the close of business
on the Distribution Date without the approval of Rights holders. After the
Distribution Date, the provisions of the Amended Rights Agreement may be amended
by the Board in order to cure any ambiguity, defect or inconsistency, to make
changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten or lengthen any
time period under the Amended Rights Agreement; provided however, that no
amendment to adjust the time period governing redemption shall be made at such
time as the Rights are not redeemable.
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 acquiror 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 a corporation's Board of Directors
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and its stockholders of any real opportunity to determine the destiny of the
corporation. 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 a 10%
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 can 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 on
appropriate terms and will not do so. The Rights may be redeemed by the Company
at $.01 per Right within ten days (or such later date as may be determined by
the Continuing Directors) after the accumulation of beneficial ownership of 10%
or more of the Company's shares by a single acquiror or group. Accordingly, the
Rights should not interfere with any merger or business combination approved by
the Board of Directors.
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 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.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company in a manner 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.
Item 2. Exhibits.
1. First Amended and Restated Common Shares Rights Agreement dated as of
December 14, 1990 between Sun Microsystems, Inc. and The First National
Bank of Boston, including the form of Rights Certificate and the Summary of
Terms attached thereto as Exhibits A and B, respectively. Incorporated by
reference to Amendment No. 1 to Registration Statement on Form 8-A filed
with the Securities and Exchange Commission by the Company on December 24,
1990.
2. Amendment dated as of October 28, 1991 to First Amended and Restated Common
Shares Rights Agreement dated as of December 14, 1990 between Sun
Microsystems, Inc. and The First National Bank of Boston. Incorporated by
reference to Amendment No. 2 to Registration Statement on Form 8-A filed
with the Securities and Exchange Commission by the Company on November 6,
1991.
3. Second Amendment dated as of August 5, 1992 to First Amended and Restated
Common Shares Rights Agreement dated as of December 14, 1990 between Sun
Microsystems, Inc. and The First National Bank of Boston. Incorporated by
reference to Amendment No. 3 to Registration Statement on Form 8-A filed
with the Securities and Exchange Commission by the Company on September 16,
1992.
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4. Third Amendment dated as of November 2, 1994 to First Amended and Restated
Common Shares Rights Agreement dated as of December 14, 1990 between Sun
Microsystems, Inc. and The First National Bank of Boston. Incorporated by
reference to Amendment No. 4 to Registration Statement on Form 8-A filed
with the Securities and Exchange Commisstion by the Company on November 16,
1995.
5. Fourth Amendment dated as of November 1, 1995 to First Amended and Restated
Common Shares Rights Agreement dated as of December 14, 1990 between Sun
Microsystems, Inc. and BancBoston State Street Investor Services
(formerly, the First National Bank of Boston).
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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.
November 6, 1995 SUN MICROSYSTEMS, INC.
By: /s/ MICHAEL H. MORRIS
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Michael H. Morris, Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
Exhibit Number
- --------------
5. Fourth Amendment dated as of November 1, 1995 to First Amended and Restated
Common Shares Rights Agreement dated as of December 14, 1990 between Sun
Microsystems, Inc. and The First National Bank of Boston.
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EXHIBIT 5
FOURTH AMENDMENT
TO
FIRST AMENDED AND RESTATED
COMMON SHARES RIGHTS AGREEMENT
This Fourth Amendment, dated as of November 1, 1995 (the "Amendment" ), is
to the First Amended and Restated Common Shares Rights Agreement dated as of
December 14, 1990, as amended to date (the "Agreement"), between Sun
Microsystems, Inc., a Delaware corporation (the "Company") and BancBoston State
Street Investors (the "Rights Agent").
WHEREAS, on November 1, 1995, the Board of Directors of the Company
determined that it is in the best interests of the Company and its stockholders
to amend the Agreement in order to increase the "Purchase Price", as defined
pursuant to the terms of the Agreement, from $100.00 to $200.00 (without giving
effect to the Company's recent two-for-one stock split declared by the Board of
Directors of the Company on November 2, 1995 in the form of a stock dividend
issuable to stockholders of record on November 20, 1995 (the "Recent Stock
Split")), such Purchase Price is subject to adjustment from time to time as a
result of certain events described in the Agreement, including the Recent Stock
Split, and the Rights Agent has agreed to such amendment; and
WHEREAS, the Company and the Rights Agent have determined that, pursuant to
Section 27 of the Agreement, the Agreement may be amended as set forth herein
without the approval of the holders of the Rights (as defined in the Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the Agreement is hereby amended as follows:
1. Section 7(b) of the Rights Agreement is hereby amended in its entirety
to read as follows:
"(b) The Purchase Price for each Common Share issuable pursuant to the
exercise of a Right shall initially be $200.00, shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof
and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below."
2. All other terms and conditions of the Agreement, including the Exhibits
thereto, shall remain in full force and effect.
3. This Amendment may be executed in any number of counterparts, each of
such counter parts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on this 3rd day of November, 1995.
SUN MICROSYSTEMS, INC.
By: /s/ MICHAEL H. MORRIS
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Name: Michael H. Morris
Title: Vice President, General Counsel
and Secretary
BANCBOSTON STATE STREET INVESTOR
SERVICES (formerly, THE FIRST NATIONAL
BANK OF BOSTON)
By: /s/ GEOFFREY D. ANDERSON
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Name: GEOFFREY D. ANDERSON
Title: Senior Accounts Manager
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COMPLIANCE CERTIFICATE
The undersigned, Michael H. Morris, hereby certifies as follows:
1. I am the Vice President and General Counsel of Sun Microsystems, Inc.
(the "Company").
2. The Fourth Amendment dated as of November 1, 1995 to the First Amended
and Restated Common Shares Rights Agreement dated as of December 14, 1990 is in
compliance with the terms of Section 27 of the First Amended and Restated Common
Shares Rights Agreement dated as of December 14, 1990 by and between the Company
and The First National Bank of Boston, as Rights Agent.
SUN MICROSYSTEMS, INC.
By: /s/ MICHAEL H. MORRIS
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Michael H. Morris, Vice President
and General Counsel
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