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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 9
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)
901 SAN ANTONIO ROAD
PALO ALTO, CALIFORNIA 94303
(Address of principal executive offices) (Zip Code)
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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. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on
to be so registered which each class is to be registered
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<S> <C>
NONE NONE
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
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 share purchase right (a "Right") for each
outstanding share of Common Stock, $0.00067 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. The
description and terms of the Rights are set forth in a Second Amended and
Restated Shares Rights Agreement dated as of February 11, 1998 (the "Rights
Agreement") as amended on April 14, 1999, April 26, 2000 and December 13, 2000
(the "Amendments") between the Company and BankBoston, N.A., as Rights Agent
(collectively, the "Amended Rights Agreement"). After the Distribution Date
(defined below), each Right will entitle the registered holder to purchase from
the Company one ten-thousandth of a share of Series A Participating Preferred
Stock (as may be adjusted pursuant to the terms set forth in the Amended Rights
Agreement) at a price of $250.00 (the "Purchase Price"). The Purchase Price is
subject to adjustment from time to time as a result of certain events set forth
in the Amended Rights Agreement.
The following is a general description only and is subject to the
detailed terms and conditions of the Amended Rights Agreement. A copy of the
Rights Agreement, including the form of Rights Certificate and the Amendments
are attached or incorporated hereto as Exhibits to this Registration Statement.
RIGHTS EVIDENCED BY COMMON SHARE CERTIFICATES
The Rights will not be exercisable until the Distribution Date.
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 the Board of Directors,
unless a majority of the Board of Directors has been replaced by stockholder
action by written consent) following a public announcement (which for purposes
of this definition shall include, without limitation, a report filed pursuant
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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 the Board of Directors, unless a majority of the Board of
Directors has been replaced by stockholder action by written consent) 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 10% 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 (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 10% or more of the Common Shares of the Company then outstanding.
Notwithstanding the foregoing, no person shall become an "Acquiring Person" if
(i) the Company's Board of Directors determines that such person would have
become an "Acquiring Person" inadvertently but for the operation of this
sentence and such person divests a sufficient number of shares so that such
person would no longer be an "Acquiring Person" promptly and (ii) such person
was the beneficial owner of 10% or more of the Common shares outstanding as of
February 11, 1998, unless and until such Person becomes 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 10% or more of the Common Shares then
outstanding.
In addition, notwithstanding the foregoing, a person or group of
affiliated or associated persons who (i) acquires or obtains the right to
acquire beneficial ownership of 10% or more but less than 20% of the Common
Shares then outstanding, and (ii) 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
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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 after the Record Date but 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 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, or (iii) in any other case, if
deemed necessary or appropriate by the Board of Directors, 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 or appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
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) February 11, 2008 (the "Final Expiration Date") or
(ii) redemption or exchange of the Rights 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 $250.00 per Right, one ten-thousandth of a share of
Series A Participating Preferred Stock.
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 or exchanged, in the event that a
person becomes an "Acquiring Person" 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 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
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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 or exchanged, 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.
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
Series A Participating Preferred Stock or 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 Board of 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
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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 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. Subject to certain exceptions discussed
above, 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 Board of 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
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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 an acquisition 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. Form of rights certificate.
2.1. *Second Amended and Restated Shares Rights Agreement, dated as of
February 11, 1998.
2.2. Amended and Restated Certificate of Designations of Registrant.
2.3. Third Amendment to Second Amended and Restated Shares Rights Agreement,
dated as of December 13, 2000.
* Incorporated by reference to Amendment No. 6 to Registration Statement
on Form 8-A/A filed with the Securities and Exchange Commission on
February 13, 1998.
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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.
December 13, 2000 SUN MICROSYSTEMS, INC.
By: /s/ MICHAEL H. MORRIS
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Michael H. Morris
Senior Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
EXHIBIT NUMBER
1. Form of rights certificate.
2.1. *Second Amended and Restated Shares Rights Agreement, dated as of
February 11, 1998.
2.2. Amended and Restated Certificate of Designations of Registrant.
2.3. Third Amendment to Second Amended and Restated Shares Rights Agreement,
dated as of December 13, 2000.
* Incorporated by reference to Amendment No. 6 to Registration Statement
on Form 8-A/A filed with the Securities and Exchange Commission on
February 13, 1998.
