SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-A/A
Amendment No. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ELECTRO SCIENTIFIC INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
Oregon 93-0370304
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(State of incorporation (IRS Employer
or organization) Identification No.)
13900 NW Science Park Drive, Portland, Oregon 97229
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(Address of principal executive offices) (zip code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
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:
Securities to be registered pursuant to Section 12(b) of the Act: None
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Securities to be registered pursuant to Section 12(g) of the Act:
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Series A Preferred Stock Purchase Rights
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Item 1. Description of Registrant's Securities to be Registered
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Effective as of May 7, 1999, the Board of Directors of Electro Scientific
Industries, Inc. (the "Company") declared a dividend of one Right for each
outstanding share of Common Stock of the Company to shareholders of record at
the close of business on June 4, 1999. Each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of Series A No Par
Preferred Stock (the "Preferred Stock") at a Purchase Price of $270, subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and First Chicago Trust
Company of New York, as Rights Agent.
Initially, the Rights will be attached to the certificates representing
outstanding shares of Common Stock, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common Stock and a Distribution
Date will occur upon the earlier of (i) ten days following a public announcement
that (A) a person or group of affiliated or associated persons has acquired, or
obtained the right to acquire from shareholders, beneficial ownership of 15
percent or more of the outstanding Common Stock or (B) the Board of Directors of
the Company shall declare any person to be an Adverse Person (as described
below) (each, an "Acquiring Person"), or (ii) ten days following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning 15 percent or more of such outstanding Common
Stock, as such periods may be extended pursuant to the Rights Agreement.
An Adverse Person is any person declared to be an Adverse Person by the
Board of Directors upon a determination that such person, alone or together with
its affiliates and associates, has become the beneficial owner of an amount of
Common Stock which the Board of Directors determines to be substantial (which
amount shall be more than 10% of the Common Stock then outstanding) and a
determination by at least a majority of the Board of Directors who are not
officers of the Company, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem appropriate, that
(i) such beneficial ownership by such person is intended to cause the Company to
repurchase the Common Stock beneficially owned by such person or to cause
pressure on the Company to take action or enter into a transaction or series of
transactions intended to provide such person with short-term financial gain
under circumstances where the Board of Directors determines that the best
long-term interests of the Company and its shareholders would not be served by
taking such action or entering into such transactions or series of transactions
at that time or (ii) such beneficial ownership is causing or reasonably likely
to cause a material adverse impact (including, but not limited to, impairment of
relationships with customers or impairment of the Company's ability to maintain
its competitive position) on the business or prospects of the Company.
Until the Distribution Date, (i) the Rights will be evidenced by and will
be transferred with and only with such Common Stock certificates, (ii) new
Common Stock certificates issued
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after June 4, 1999, will contain a legend incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificate for Common
Stock will also constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on May 7, 2009, unless earlier redeemed by the Company
as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date, and thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors, only Common Stock issued prior to the time the Rights
become exercisable or issued upon exercise or conversion of rights, warrants,
options or convertible securities issued prior to the time the Rights become
exercisable will be issued with Rights.
In the event that any person becomes an Acquiring Person, each holder of a
Right shall thereafter have the right to receive, upon exercise, in lieu of
Preferred Stock, Common Stock of the Company (or, in certain circumstances,
cash, property or other securities of the Company) having a value equal to two
times the exercise price of the Right. In lieu of requiring payment of the
Purchase Price upon exercise of the Rights following any such event, the Company
may permit the holders simply to surrender the Rights, in which event they will
be entitled to receive Common Stock (and other property, as the case may be)
with a value of 50 percent of what could be purchased by payment of the full
Purchase Price. However, Rights are not exercisable as described in this
paragraph until such time as the Rights are no longer redeemable by the Company
as set forth below. Notwithstanding any of the foregoing, if any person becomes
an Acquiring Person all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by an Acquiring
Person will become null and void.
For example, at an exercise price of $270 per Right, each Right not owned
by the Acquiring Person (or by certain related parties or transferees) following
the event set forth in the preceding paragraph would entitle its holder to
purchase $540 worth of Common Stock (or other consideration, as noted above) for
$270. Assuming that the Common Stock had a per share value of $45 at such time,
the holder of each valid Right would be entitled to purchase 12 shares of Common
Stock for $270. Alternatively, the Company could permit the holder to surrender
each Right in exchange for six shares of Common Stock (with an aggregate value
of $270) without the payment of any consideration other than the surrender of
the Right.
In the event that, at any time following 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 Common Stock
are exchanged for stock or other securities or property, or (ii) 50 percent or
more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, common stock
of the acquiring
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company having a value equal to two times the exercise price of the Right.
Again, provision may be made to permit surrender of the Rights in exchange for
one-half of the value otherwise purchasable.
The Purchase Price payable, and the number of one one-hundredths of a share
of Preferred Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from 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 or the Common Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants to subscribe for
Preferred Stock or convertible securities at less than the current market price
of the Preferred Stock, (iii) if holders of Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible securities at
less than the current market price of the Common Stock, or (iv) upon the
distribution to holders of Preferred Stock or Common Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price or the number
of shares of Preferred Stock issuable upon exercise of a Right will be required
until cumulative adjustments would require an increase or decrease of at least 1
percent. No fractional shares of Preferred Stock will be issued (other than
fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock) and, in lieu thereof, an adjustment in cash will be made based
on the market price of the Preferred Stock on the last trading date prior to the
date of exercise.
At any time until a determination that any person is an Adverse Person or
ten days (or longer if extended pursuant to the terms of the Rights Agreement)
after a person otherwise becomes an Acquiring Person, the Company may redeem the
Rights in whole, but not in part, at a price of $.001 per Right (payable in
cash, Common Stock or other consideration), appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
hereof. Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the $.001 redemption price.
At any time after a person becomes an Acquiring Person, the Board of
Directors of the Company may exchange the Rights (other than Rights owned by
such person or group which become void), in whole or in part, at an exchange
ratio of one share of Common Stock, or one one-hundredth of a share of Preferred
Stock (or of a share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights
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become exercisable for Common Stock (or other consideration) of the Company or
for common stock of the acquiring company as set forth above.
The Preferred Stock will be non-redeemable. The Preferred Stock may rank on
a lower priority in respect of the preference as to dividends and the
distribution of assets with other classes or series of the Company's preferred
stock. Each share of Preferred Stock will be entitled to an aggregate of 100
times the cash and non-cash (payable in kind) dividends and distributions (other
than dividends and distributions payable in Common Stock) declared on the
Company's Common Stock. In the event of liquidation, the holders of Preferred
Stock will be entitled to receive a liquidation payment in an amount equal to
100 times the payment made per share of Common Stock, plus an amount equal to
declared and unpaid dividends and distributions thereon. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Preferred Stock will be entitled to receive 100 times
the amount received per share of Common Stock. The dividend and liquidation
rights of the Preferred Stock are protected by antidilution provisions. Each
share of Preferred Stock will be entitled to 100 votes (subject to certain
adjustments) on all matters submitted to the shareholders. Other than those
provisions relating to the principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the Board of Directors
prior to the Distribution Date. After the Distribution Date, the provisions of
the Rights Agreement may be amended by the Board in order to cure any ambiguity,
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 Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption may be made at such time as the
Rights are not redeemable.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an exhibit to a Current Report on Form 8-K dated May 7,
1999. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
Item 2. Exhibits
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Exhibit Number Exhibit Title
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1. Form of Rights Agreement, dated as of May 7, 1999, between
the Company and First Chicago Trust Company of New York
(incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K, dated May 7, 1999)
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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.
ELECTRO SCIENTIFIC INDUSTRIES, INC.
By: DONALD R. VANLUVANEE
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Name: DONALD R. VANLUVANEE
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Title: President
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Dated: May 28, 1999
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EXHIBIT INDEX
Exhibit Number Exhibit Title
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1. Form of Rights Agreement, dated as of May 7, 1999, between
the Company and First Chicago Trust Company of New York
(incorporated by reference to Exhibit 4.1 to the Registrant's
Current Report on Form 8-K, dated May 7, 1999)
