SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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Form 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Network Equipment Technologies, Inc.
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(Exact name of registrant as specified in its Charter)
Delaware 94-2904044
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(State of Incorporation or (I.R.S. Employer Identification No.)
Organization)
6500 Paseo Padre Parkway
Fremont, California 94555
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(Address of Principal Executive (Zip Code)
Offices)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box. |X| check the following box. |_|
Securities Act registration statement file number to which this form relates:
_______________
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Item 1 is hereby amended in its entirety to read as follows:
On August 15, 1989, the Board of Directors of Network Equipment
Technologies, Inc. (the "Company") declared a dividend of one preferred share
purchase right (a "Right" for each outstanding share of common stock, par value
$.01 per share (the "Common Shares"), of the Company. The dividend was payable
on August 25, 1989 (the "Record Date") to the stockholders of record on that
date. Each right initially entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series A Junior Participating Preferred
Stock, par value $.01 per share (the "Preferred Shares"), of the Company at an
initial price of $120 per one-hundredth of a Preferred Share (the "Initial
Purchase Price"), subject to adjustment.
On June 12, 1990, the Board of Directors of the Company approved Amendment
No. 1, dated as of June 12, 1990 ("Amendment No. 1") to the Rights Agreement
between the Company and The First National Bank of Boston, as Rights Agent,
dated as of August 15, 1989 (the "Original Rights Agreement").
On July 12, 1999, the Board of Directors of the Company approved
Amendment No. 2, dated as of August 17, 1999 ("Amendment No. 2"; together
with Amendment No. 1, the "Amendments") to the Rights Agreement between the
Company and BankBoston, successor to The First National Bank of Boston, as
Rights Agent (the Original Rights Agreement, together with Amendment No. 1
and Amendment No. 2, shall be referred to as the "Rights Agreement"). Among
other changes, Amendment No. 2 amends the Initial Purchase Price to $80 per
one one-hundredth of a Preferred Share (the "Amended Purchase Price"),
subject to adjustment.
The Rights Agreement as amended by the Amendments provides that initially,
the Rights will attach to all certificates representing outstanding Common
Shares, and no separate certificates evidencing the Rights ("Rights
Certificates") will be distributed. Until the Distribution Date (as defined
below), (i) the Rights will be evidenced solely by Common Share certificates and
will be transferred with and only with such Common Share certificates, and (ii)
new Common Share certificates issued after the Record Date will contain a legend
incorporating the Rights Agreement, as amended, by reference.
The Rights will separate from the Common Shares and become exercisable on
the Distribution date, which is the earlier of (i) the 10th day following the
first date of public announcement that an Acquiring Person (as defined below)
has become such (such date of public announcement being the "Shares Acquisition
Date"), or (ii) the 10th Business Day following the commencement of a tender
offer or exchange offer that would result in a person or group Beneficially
Owning 20% or more of the then outstanding Common Shares without the consent of
a majority of Continuing Directors. An "Acquiring Person" means any Person which
without the prior approval of a majority of the Continuing Directors becomes the
Beneficial Owner of 15% or more of the Common Shares then outstanding. A
"Continuing Director" means any existing member of the Board of Directors prior
to the date of the Rights Agreement and successors approved by a majority of the
Continuing Directors, and in each case who is not an Acquiring Person or an
Affiliate or Associate thereof. The Company recognizes that there has been
recent activity in the State of Delaware regarding "continuing director
provisions." As such, the Company notes that Amendment No. 1 added a provision
to Section 31 of the Rights
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Agreement, as amended, which states that if "any provision requiring that a
determination be made by less than the entire Board [i.e., the Continuing
Directors] . . . is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, such determination shall be made by the
Board."
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Common Shares as of the close of business
on the Distribution Date and, thereafter, the separate Rights Certificates alone
will represent the Rights.
The Rights will expire at the Close of Business on August 24, 2009, unless
earlier redeemed or exchanged by the Company as described below.
Pursuant to Amendment No. 2, the Rights Agreement now contains a
Three-year Independent Director Evaluation Provision ("Tide Provision") pursuant
to which the Rights Agreement shall be evaluated by a committee of outside
directors at least once every three years to determine whether the Agreement
continues to be in the best interest of the Company.
In the event that an Acquiring Person exists, then, from and after the
Close of Business on the tenth day following the Shares Acquisition Date, each
Right not owned by the Acquiring Person (or any Affiliate or Associate thereof)
will thereafter entitle its holder to receive, upon exercise, Common Shares (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 the event that, at any time following the Shares Acquisition Date, and
without the consent of a majority of the Continuing Directors (i) the Company is
acquired in a merger or other business combination transaction with another
person (ii) 50% or more of the Company's assets or earning power is sold or
transferred to another person, then, each Right (except Rights owned by the
Acquiring Person or any Affiliate or Associate of the Acquiring Person) shall
thereafter entitle its holder to receive, upon exercise, Common Shares (or, in
certain circumstances, cash, property or other securities) of such other person
having a value equal to two times the exercise price of the Right.
Upon the occurrence of any of the events descried in the foregoing two
paragraphs, if any of the Rights are Beneficially Owned by an Acquiring Person
or any Affiliate or Associate thereof, such Rights will become null and void and
no holder thereof will have any right with respect thereto.
The Amended Purchase Price payable, and the number of Preferred Shares
issuable, upon exercise of the Rights and the number of Rights are subject to
adjustment from time to time to prevent dilution (all as more fully described in
the Rights Agreement).
With certain exceptions, no adjustment in the Amended Purchase Price will
be required until cumulative adjustments amount to at least 1% of the Amended
Purchase Price. No fractional Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share) or fractional
Rights will be issued an, in lieu thereof, an adjustment in cash will be made
based on the market price of the Preferred Shares or Rights, respectively, prior
to the date of exercise.
At any time until the Close of Business on the tenth day following the
Shares Acquisition
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Date, the Company may, at its option and upon approval of a majority of the
Continuing Directors, redeem the Rights in whole, but not in part, at a price of
$.01 per Right, subject to adjustment in certain circumstances (the "Redemption
Price"), payable, at the option of the Company in cash or Common Shares. The
redemption of the Rights may be made effective at such time and on such basis
and with such conditions as the Continuing Directors may approve. Upon the
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
In addition, the Company may, at its option, at any time after the Close
of Business on the tenth day following the Shares Acquisition Date and prior to
the acquisition of 50% or more of the outstanding Common Shares by any person or
group, exchange all or part (if in part, on a pro rata basis) of the then
outstanding and exercisable Rights (except for Rights which have become void as
described above) at an exchange ratio of one Common Share (or in certain
instances equivalent fractions of Preferred Shares) for each Right, subject to
adjustment in certain circumstances.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder 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 stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income upon the Rights becoming exercisable
for Preferred Shares or Common Shares (or other consideration), upon being
exercised, upon redemption or upon exchange.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 100 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be entitled to an
aggregate payment of 100 times the payment made per Common Share. Each Preferred
Share will have 100 votes, voting together with the Common Shares. In the event
of any merger, consolidation or other transaction in which Common Shares are
exchanged, each Preferred Share will be entitled to receive 100 times the amount
received per Common Share. These rights are protected by customary antidilution
provisions. Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Preferred
Share initially purchasable upon exercise of each Right should approximate the
value of one Common Share.
Any of the provisions of the Rights Agreement as amended by the Amendment
may be amended without the consent of the holders of Rights, at any time prior
to the Distribution Date. After the Distribution Date, the Company (with the
approval of a majority of Continuing Directors) may amend the provisions of the
Rights Agreement without the consent of holders of Rights only in order to cure
any ambiguity, defect or inconsistency, or to make changes (including, without
limitation, changes to the Amended Purchase Price, the Redemption Price or any
time periods specified therein) which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring Person or an
Affiliate or Associate of an Acquiring Person).
The Rights may have certain anti-takeover effects. The Rights will cause
substantial
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dilution to a person or group that attempts to acquire the Company on terms not
approved by a majority of the Continuing Directors unless the offer is
conditioned on a substantial number of Rights being acquired. However, the
Rights should not interfere with any merger or other business combination
approved by a majority of the Continuing Directors since the Rights may be
redeemed by the Company as described above. Thus, the Rights are intended to
encourage persons who may seek to acquire control of the Company to initiate
such an acquisition through negotiations with the Board of Directors, acting on
behalf of all stockholders. However, the effect of the Rights may be to
discourage a third party from making a partial tender offer or otherwise
attempting to obtain a substantial equity position in the equity securities of,
or seeking to obtain control of, the company.
Amendment No. 2 is attached hereto as Exhibit (1) and is incorporated
herein by reference. The foregoing description is qualified in its entirety by
reference to the Original Rights Agreement (filed as an exhibit to the original
Form 8-A, dated August 17, 1989), Amendment No. 1 (filed as an exhibit to the
Amendment No. 1, dated June 15, 1990, to the Form 8-A) and to Amendment No. 2
attached hereto.
ITEM 2. EXHIBITS.
Exhibit No. Description
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(1) Amendment No. 2, dated as of August 17, 1999, between Network
Equipment Technologies, Inc. and BankBoston as Rights Agent.
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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.
Network Equipment Technologies, Inc.
Date: August 17, 1999 By: /s/ MARY ANN MORAN
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Name: Mary Ann Moran
Title: Secretary and General Counsel
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EXHIBIT INDEX
Exhibit No. Description
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(1) Amendment No. 2, dated as of August 17, 1999, between Network
Equipment Technologies, Inc. and BankBoston as Rights Agent.
Exhibit 1
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT No. 2 dated as of August 17, 1999, to the Rights Agreement,
dated as of August 15, 1989 (the "Rights Agreement"), as amended by Amendment
No. 1 (together, with the Rights Agreement, the "Rights Agreement, as amended"),
dated as of June 12, 1990, between Network Equipment Technologies, Inc., a
Delaware corporation (the "Company") and BankBoston, successor to The First
National Bank of Boston, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement, as amended, specifying the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to further amend the
Rights Agreement, as amended, in accordance with Section 27 of the Rights
Agreement, as amended;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement, as amended, and this Amendment No. 2, the parties
hereby agree as follows:
1. Section 2 of the Rights Agreement, as amended, is hereby amended as
follows:
The last sentence of Section 2 is hereby amended by deleting
such sentence in its entirety and substituting the following
sentence in its place:
"The Company may from time to time appoint such co-Rights
Agents as it may deemed necessary of desirable, upon ten (10)
days' prior written notice to the Rights Agent. The Rights
Agent shall have no duty to supervise, and shall in no event
be liable for, the acts or omissions of any such co-Rights
Agent."
2. Section 7 of the Rights Agreement, as amended, is hereby amended as
follows:
(a) The definition of "Final Expiration Date" in Section 7(a) is
hereby amended by deleting clause (i) of the first sentence
thereof in its entirety and substituting the following in its
place:
"(i) the Close of Business on August 24, 2009 (the "Final
Expiration Date"),"
(a) The text of Section 7(b) is hereby amended by deleting sole
sentence thereof in its entirety and substituting the
following in its place:
"The Purchase Price for each one one-hundredth of a Preferred
Share pursuant to the exercise of a Rights shall initially be
$80, 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
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the United States of America in accordance with paragraph (c)
below."
3. Section 18 of the Rights Agreement, as amended, is hereby amended as
follows:
Section 18 is hereby amended by deleting the text in its
entirety and substituting the following in its place:
"The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees that the Rights Agent shall not, under any
circumstances, be liable to anyone for any acts or omissions
hereunder of the Rights Agent other than arising due to the
Rights Agent's gross negligence, bad faith or willful
misconduct."
4. Section 20 of the Rights Agreement, as amended, is hereby amended as
follows:
The text of Section 20(c) is hereby amended by deleting the
sole sentence thereof in its entirety and substituting the
following in its place:
"The Rights Agent shall be liable hereunder to the Company and
any other person only for its own gross negligence, bad faith
or willful misconduct."
5. Section 26 of the Rights Agreement, as amended, is hereby amended as
follows:
(a) The address of the Company contained in the notice
provision of Section 26 shall amended by deleting the address
in its entirety and substituting the following in its place:
Network Equipment Technologies, Inc.
6500 Paseo Padre Parkway
Fremont, California 94555
Attention: Corporate Secretary
(b) The address of the Rights Agent contained in the notice
provision of Section 26 shall amended by deleting the address
in its entirety and substituting the following in its place:
BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration
6. Section 29 of the Rights Amendment, as amended, is hereby amended as
follows:
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(a) The text of the present paragraph in Section 29 shall be
amended by numbering such paragraph (a).
(b) Section 29 of the Rights Amendment is hereby further amended
by adding a new sub-paragraph (b) at the end thereof as
follows:
"(b)(i) It is understood that the Independent Directors
Committee (as defined below) of the Board of Directors of the
Company shall review and evaluate this Agreement in order to
consider whether the maintenance of this Agreement continues
to be in the interests of the Company, its stockholders and
any other relevant constituencies of the Company, at least
every three years, or sooner than that if a majority of the
members of the Independent Directors Committee shall deem such
review and evaluation appropriate after giving due regard to
all relevant circumstances. Following each such review, the
Independent Directors Committee will communicate its
conclusions to the full Board of Directors, including any
recommendation in light thereof as to whether this Agreement
should be modified or the Rights should be redeemed. The
Independent Directors Committee shall be comprised of the
Directors of the Company who shall have been determined to be
independent by the determination by the Audit Committee of the
Board, in accordance with criteria adopted by it.
"(ii) The Independent Directors Committee shall have the power
to set its own agenda, and shall be able to retain at the
expense of the Company its choice of legal counsel, investment
bankers and other advisors. The Independent Directors
Committee has the authority to review all information of the
Company and to consider any and all factors the Committee
deems relevant to an evaluation of whether to maintain the
Agreement."
7. Exhibit B of the Rights Amendment, as amended, is hereby amended by
deleting Exhibit B in its entirety and replacing it with the
following:
Exhibit B Form of Right Certificate
Certificate No. R- ___________ Rights
NOT EXERCISABLE AFTER AUGUST 24, 2009 OR EARLIER IF REDEMPTION OR EXCHANGE
OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE COMPANY
AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH
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TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SUCH AGREEMENT.]*
Right Certificate
NETWORK EQUIPMENT TECHNOLOGIES, INC.
This certifies that _______________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of August 15, 1989, as amended by Amendment No. 1, dated as
of June 12, 1990, and Amendment No. 2, dated as of August 17, 1999 (the "Rights
Agreement"), between Network Equipment Technologies, Inc., a Delaware
corporation (the "Company"), and BankBoston (as successor to The First National
Bank of Boston) (the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights .Agreement)
and prior to 5:00 P.M., Boston, Massachusetts time, on August 24, 2009 at the
office of the Rights Agent designated for such purpose, or at the office of its
successor as Rights Agent, one one-hundredth of a fully paid non-assessable
share of Series A Junior Participating Preferred Stock, par value $.0l per share
(the "Preferred Shares") of the Company, at a purchase price of $80 per one
one-hundredth of a Preferred Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right Certificate (and the
number of one one-hundredths of a Preferred Share which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set forth above, are
the number and Purchase Price as of August 24, 1999 based on the Preferred
Shares as constituted at such date. As provided in the Rights Agreement, the
Purchase Price and the number of one one-hundredths of a Preferred Share which
may be purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening of
certain events.
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* The portion of the legend in bracket shall be inserted only if applicable
and shall replace the preceding sentence.
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This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at a redemption price of
$.0l per Right or (ii) may be exchanged in whole or in part for Preferred
Shares, shares of the Company's Common Stock, par value $.0l per share, or
substantially equivalent rights or other consideration as determined by the
Company.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
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stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of ___________, ____.
[SEAL]
ATTEST: NETWORK EQUIPMENT TECHNOLOGIES, INC.
______________________________ By:_________________________________
Countersigned:
BANKBOSTON, as Rights Agent
By:___________________________
Authorized Signature
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed, all as of the day and year first above written.
NETWORK EQUIPMENT TECHNOLOGIES, INC.
By:/s/ HUBERT A.J. WHYTE
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Name: Hubert A. J. Whyte
Title: President & CEO
BANKBOSTON
By:/s/ GEOFFREY D. ANDERSON
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Name: Geoffrey D. Anderson
Title: Director
