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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1 to
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
GARTNER GROUP, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-3099750
(State of incorporation or organization) (IRS Employer Identification No.)
Post Office Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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<S> <C>
Class A Preferred Share Purchase New York Stock Exchange
Rights and Class B Preferred
Share Purchase Rights
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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Item 1 Description of Securities to be Registered.
On February 9, 2000, Gartner Group, Inc. (the "Company")
adopted a Stockholder Rights Plan and entered into an Agreement with Bank
Boston, N.A. as Rights Agent on February 10, 2000, which Agreement was amended
by Amendment No. 1 to the Rights Agreement, dated as of April 11, 2000
(collectively, the "Rights Agreement"). In connection with the Rights Plan, the
Company's Board of Directors declared a dividend of one Class A Preferred Share
Purchase Right (a "Class A Right") to purchase one one-thousandth share of the
Company's Series A Junior Participating Preferred Stock ("Series A Junior
Preferred") for each outstanding share of the Company's Class A Common Stock
("Class A Common Share") and one Class B Preferred Share Purchase Right (a
"Class B Right") to purchase one one-thousandth share of the Company's Series B
Junior Participating Preferred Stock ("Series B Junior Preferred") for each
outstanding share of the Company's Class B Common Stock, ("Class B Common
Share") (collectively, the "Rights"). The record date for the dividend is as of
the close of business on February 25, 2000. Each Class A Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Junior Preferred at an exercise price of ninety dollars ($90.00) (the
"Purchase Class A Price"), and each Class B Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of Series B
Junior Preferred at an exercise price of ninety dollars ($90.00) (the "Purchase
Class B Price"), subject in each case to adjustment.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date
(defined below). Separate Certificates for the Rights ("Rights Certificates")
will not be sent to shareholders until the Distribution Date. Until the
Distribution Date, the Class A Rights and Class B Rights will attach to and
trade together with the Class A Common Shares and Class B Common Shares,
respectively. Accordingly, Common Share certificates outstanding on the Record
Date will evidence the Rights related thereto, and Common Share certificates
issued after the Record Date will contain a notation incorporating the 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 the Record Date, will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate.
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: (a) 10 days following a public announcement that a person or group
of affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of (i) 20% or more of the
outstanding Class A Common Shares, or (ii) 20% of more of the outstanding Class
B Common Shares, or (iii) 15% of the aggregate of the Class A Common Shares and
the Class B Common Shares (each, a "Threshold Amount") or (b) 10 business days
following the commencement of, or announcement of a tender offer or exchange
offer the consummation of which would result in the beneficial ownership by a
person or group of a Threshold Amount. The earliest of such dates is referred to
as the "Distribution Date."
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Exclusion of Certain Investors
The Rights Agreement provides that, in certain circumstances,
the acquisition or ownership of a Threshold Amount by an "Excepted Person" will
not result in the Rights becoming exercisable. In general terms, a person will
be an Excepted Person if they own as passive investors 20% or more of the Class
A Common Shares or Class B Common Shares at the time the Rights Agreement is
entered into. A person will continue to be an Excepted Person after such date so
long as the person continues to be a passive investor in the Company, does not
increase his ownership of the applicable class of Common Shares by more than 1%
and does not reduce his ownership of such shares below 19% of such class.
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. All Common Shares issued prior to the Distribution Date will
be issued with Rights. The Rights will expire on the earliest of (i) February
25, 2010 (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 the Class A Purchase Price or the Class B Purchase
Price, as the case may be, one one-thousandth of a share of the Series A Junior
Preferred (in the case of a Class A Right) or one one-thousandth of a share of
the Series B Junior Preferred (in the case of a Class B Right). In the event
that the Company does not have sufficient Series A Junior Preferred or Series B
Junior Preferred 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 Series A Junior Preferred and the Series B Junior Preferred for which the
Rights would have been exercisable under this provision or as described below.
Right to Buy Company Common Shares
Unless the Rights have been redeemed, in the event that an
Acquiring Person becomes the beneficial owner of a Threshold Amount, then each
holder of a Right which has not been exercised (other than Rights beneficially
owned by the Acquiring Person, which will thereafter be void) will have the
right to receive, upon exercise, Class A Common Shares (in the case of Class A
Rights) or Class B Common Shares (in the case of Class B Rights) having a value
equal to two times the Class A Purchase Price or Class B Purchase Price,
respectively. Rights are not exercisable following the occurrence of an event as
described above until such time as the Rights are no longer redeemable by the
Company as set forth below.
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Right to Buy Acquiring Company Stock
Similarly, unless the Rights are redeemed, if, after an
Acquiring Person becomes the beneficial owner of a Threshold Amount, (i) the
Company is acquired in a merger or other business combination transaction, or
(ii) 50% or more of the Company's consolidated assets or earning power are sold
(other than in transactions in the ordinary course of business), proper
provision must be made so that each holder of a Right which has not been
exercised (other than Rights beneficially owned by the Acquiring Person, which
will thereafter be void) will have the right to receive, upon exercise, shares
of common stock of the acquiring company having a value equal to two times the
Class A Purchase Price or the Class B Purchase Price, as the case may be.
Exchange Provision
At any time after the acquisition by an Acquiring Person of a
Threshold Amount and prior to the acquisition by such Acquiring Person of 50% or
more of the Company's outstanding Class A Shares or Class B Shares, the Board of
Directors of the Company may exchange the Class A Rights and the Class B Rights
(other than Rights owned by the Acquiring Person), in whole or in part, at an
exchange ratio of one Class A Common Share per Class A Right and one Class B
Common Share per Class B Right.
Redemption
At any time on or prior to the close of business on the
earlier of (i) the Distribution Date, or (ii) the Final Expiration Date of the
Rights, the Company may, at its option and with the approval of the Board of
Directors, redeem the Rights in whole, but not in part, at a price of $0.001 per
Right.
Adjustments to Prevent Dilution
The Class A Purchase Price and the Class B Purchase Price
payable, the number of Class A Rights and Class B Rights, and the number of
Series A Junior Preferred and Series B Junior Preferred or Class A Common Shares
or Class B Common Shares or other securities or property issuable upon exercise
of the Rights are subject to adjustment from time to time in connection with the
dilutive issuances by the Company as set forth in the Rights Agreement. With
certain exceptions, no adjustment in the Class A Purchase Price or Class B
Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price.
Cash Paid Instead of Issuing Fractional Shares
No fractional portion less than integral multiples of one
Common Share will be issued upon exercise of a Right and in lieu thereof, an
adjustment in cash will be made based on the market price of the Class A Common
Shares (in the case of a Class A Right) or the Class B Common Shares (in the
case of a Class B Right) on the last trading date prior to the date of exercise.
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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 Rights Agreement
The terms of the Rights and the Rights Agreement may be
amended in any respect without the consent of the Rights holders on or prior to
the Distribution Date; thereafter, the terms of the Rights and the Rights
Agreement may be amended without the consent of the Rights holders in order to
cure any ambiguities or to make changes which do not adversely affect the
interests of Rights holders (other than the Acquiring Person).
Rights and Preferences of the Series A Junior Preferred and
the Series B Junior Preferred
Each one one-thousandth of a share of Series A Junior Preferred and
each one one-thousandth of a share of Series B Junior Preferred has rights and
preferences substantially equivalent to those of one Class A Common Share and
one Class B Common Share, respectively.
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 acquirer 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 the Company's Board of Directors
and its stockholders of a full opportunity to evaluate an offer in light of the
long term prospects of the Company. 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 Threshold Amount 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 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 and will not do so. Since, subject to the restrictions described above,
the Company may redeem the Rights prior to the Distribution Date, the Rights
should not interfere with any merger or business combination approved by the
Board of Directors.
Issuance of the Rights does not weaken the financial strength
of the Company or interfere with its business plans. The issuance of the Rights
themselves has no dilutive effect, will not affect reported earnings per share,
should not be taxable to the Company or to its shareholders, 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.
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The Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company 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. Rights Agreement, dated as of February 10, 2000 between
Gartner Group, Inc., and Bank Boston, N.A., including the
exhibits attached thereto.*
2. Amendment No. 1 dated as of April 11, 2000 to the Rights
Agreement dated as of February 10, 2000 by and between
Gartner Group, Inc. and Fleet National Bank (f/k/a Bank
Boston, N.A.).
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* Filed as Exhibit 1 to the Company's Registration Statement on
Form 8-A filed March 7, 2000.
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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.
GARTNER GROUP, INC.
Date: May 12, 2000
By: /s/ Michael D. Fleisher
Name: Michael D. Fleisher
Title: Chief Executive Officer
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EXHIBIT INDEX
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Exhibit No. Description
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2 Amendment No. 1 to the Rights Agreement
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AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
This AMENDMENT NO. 1 (this "Amendment") dated as of April 11,
2000 to the Rights Agreement dated as of February 10, 2000 (the "Rights
Agreement") by and between Gartner Group, Inc. a Delaware corporation (the
"Company") and Fleet National Bank (f/k/a Bank Boston, N.A., a national banking
association), as Rights Agent (the "Rights Agent").
RECITALS:
WHEREAS, the Company has entered into a Securities Purchase
Agreement dated as of March 21, 2000 (as such agreement may be amended,
supplemented or otherwise modified from time to time, the "Purchase Agreement")
with Silver Lake Partners, L.P. and certain related entities (the "Purchasers");
WHEREAS, pursuant to, and subject to the conditions set forth
in, the Purchase Agreement, the Company proposes to issue to the Purchasers
$300,000,000 of its 6% Convertible Junior Subordinated Promissory Notes due 2005
(the "Notes");
WHEREAS, subject to the terms and conditions set forth in the
Notes, after the third anniversary of the issuance of the Notes, the Notes (or
shares of preferred stock into which the Notes would convert under certain
circumstances) would be convertible into more than 20% of the outstanding shares
of the Company's Class A Common Stock par value $.0005 per share (the "Class A
Common Stock");
WHEREAS, the Purchasers have agreed that for so long as the
Purchasers' nominees to the Board of Directors of the Company (the "Board") are
elected to, and not removed from, the Board and such Purchasers hold Notes or
any other security issued upon conversion of the Notes, the Purchasers shall not
directly or indirectly acquire additional shares of Class A Common Stock or
Class B Common Stock par value $.0005 per share of the Company;
WHEREAS, the Board of Directors has approved the Purchase
Agreement and the transactions contemplated therein; and
WHEREAS, it is a condition precedent to the issuance and sale
of the Notes pursuant to the Purchase Agreement that the Company and the Rights
Agent shall have executed this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Rights Agent hereby agree to amend the
Rights Agreement as follows:
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SECTION 1. Certain Definitions. Capitalized terms used herein
without definition are used herein as defined in the Rights Agreement.
SECTION 2. Amendment to the Rights Agreement. The definition
of "Acquiring Person" set forth in Section 1(a) of the Rights Agreement is
hereby amended by (i) replacing the "period" at the end of the third sentence
thereof with the following "; and" and (ii) adding a new clause (iii) to the end
thereof to read in full as follows:
"(iii) if after the date hereof any Person or any of such
Person's Affiliates or Associates, becomes the Beneficial
Owner of a Threshold Amount pursuant to (or as contemplated
by) an agreement that has been approved by the Board of
Directors of the Company prior to such Person becoming an
Acquiring Person, neither (i) such Person or any of such
Person's Affiliates or Associates nor (ii) any transferee of
such Person or such Person's Affiliates or Associates,
provided that in the case of this subclause (ii) such
transferee is not, either before or after giving effect to
each such transfer, the Beneficial Owner of (x) 25% or more of
the Class A Common Shares, (y) 20% or more of the Class B
Common Shares or (z) 20% or more of the Company's Common
Shares then outstanding, shall be or become an Acquiring
Person, as defined pursuant to the foregoing provisions of
this paragraph (a), unless and until such time as such Person
or such Person's Affiliates, Associates or transferees shall
become 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 a Threshold Amount."
SECTION 3. Effect of Amendment. Except as otherwise amended
hereby, the Rights Agreement shall remain in full force and effect.
SECTION 4. Governing Law. This Amendment shall be deemed to be
a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State;
provided, however, that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
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SECTION 5. 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
but one and the same instrument.
SECTION 6. Descriptive Headings. Descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to duly executed as of the day and year first above written.
GARTNER GROUP, INC.
By: __________________
Name:
Title:
FLEET NATIONAL BANK
(F/K/A BANK BOSTON, N.A.)
By: ____________________
Name:
Title:
