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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-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
CATALYTICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-2262240
- ---------------------------------------- ---------------------------------
(State of incorporation or organization) (IRS Employer Identification No.)
430 Ferguson Drive
Mountain View, CA 94043
(Address of principal executive offices) (Zip Code)
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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. [ ]
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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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
-------------------------------
(Title of Class)
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The undersigned Registrant hereby amends the following items, financial
statements, exhibits or other portions of its Registration Statement on Form 8-A
(the "8-A") originally filed with the Securities and Exchange Commission on
December 11, 1992 and subsequently amended on November 19, 1996:
Item 1 and Item 2 of the 8-A have been revised to indicate changes to the
terms of the Preferred Shares Rights Agreement (the "Rights Agreement") dated as
of October 23, 1996 between the Registrant and ChaseMellon Shareholder Services,
L.L.P., pursuant to Amendment No. 1 to the Rights Agreement which was executed
as of July 21, 1997. Additionally, Exhibit No. 2 to the 8-A is being filed
herewith.
In connection with the Investment Agreement by and among the Company and
Morgan Stanley Capital Partners III, L.P., Morgan Stanley Capital Investors,
L.P. and MSCP III 892 Investors, L.P. (collectively, "MSCP") dated June 25, 1997
(the "Investment Agreement"), the Company and ChaseMellon Shareholder Services,
L.L.P. on July 28, 1997 executed Amendment No. 1 (the "Amendment") to the
Preferred Shares Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.P., dated as of July 28, 1997 (the "Rights
Agreement"). The Amendment excepts from operation of defensive measures under
the Rights Agreement the issuance and sale to MSCP on or about July 31, 1997 of
an aggregate of 30,000,000 shares of Class A Common Stock and Class B Common
Stock of the Company (collectively, the "Shares"). The Amendment does not
otherwise exempt MSCP from the terms of the Rights Agreement.
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Item 1. Description of Securities to be Registered.
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On October 23, 1996 pursuant to a Preferred Shares Rights Agreement
(the "Rights Agreement") between Catalytica, Inc. (the "Company") and
ChaseMellon Shareholder Services, L.L.P., as Rights Agent (the "Rights Agent"),
the Company's Board of Directors declared a dividend of one right (a "Right") to
purchase one one-thousandth share of the Company's Series A Participating
Preferred Stock ("Series A Preferred") for each outstanding share of Common
Stock, $.001 par value ("Common Shares"), of the Company. The dividend was paid
on November 29, 1996 (the "Record Date") to stockholders of record as of the
close of business on that date. Each Right entitles the registered holder to
purchase from the Company one one-thousandth of a share of Series A Preferred at
an exercise price of $25.00 (the "Purchase Price"), subject to adjustment.
The following summary of the principal terms of the Rights Agreement is a
general description only and is subject to the detailed terms and conditions of
the Rights Agreement. A copy of the Rights Agreement is attached as Exhibit 1
to this Registration Statement and is 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") will not be sent to
shareholders and the Rights will attach to and trade only together with the
Common Shares. Accordingly, Common Share certificates outstanding
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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, even without
notation or a copy of the Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
Distribution Date
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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 Acquiring Person, as defined
below (the "Continuing Directors")) 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 20% or more
of the outstanding Common Shares, or (ii) 10 business days (or such later date
as may be determined by a majority of the Continuing Directors then in office)
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 20% or more of the outstanding Common Shares.
The earlier of such dates is referred to as the "Distribution Date."
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Issuance of Rights Certificates; Expiration of Rights
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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. Common
Shares issued after the Distribution Date may be issued with Rights if such
shares are issued (i) upon the conversion of outstanding convertible debentures
or any other convertible securities issued after adoption of the Rights
Agreement or (ii) pursuant to the exercise of stock options or under employee
benefit plans or arrangements unless such issuance would result in (or create a
risk that) such options, plans or arrangements would not 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) October 23,
2006 (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
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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 $25.00 per Right, one one-thousandth share of the
Series A Preferred. In the event that the Company does not have sufficient
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Series A 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 Preferred for which the Rights would have been
exercisable under this provision or as described below.
Right to Buy Company Common Shares
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Unless the Rights are earlier redeemed, in the event that an Acquiring
Person becomes the beneficial owner of 20% or more of the Company's Common
Shares then outstanding (other than pursuant to 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 an event as described
above until such time as the Rights are no longer redeemable by the Company as
set forth below.
Right to Buy Acquiring Company Stock
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Similarly, unless the Rights are earlier redeemed, in the event that, after
the Shares Acquisition Date (as defined below), (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 theretofore been exercised (other
than Rights beneficially owned
<PAGE>
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).
Permitted Offer
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A Permitted Offer means a tender offer for all outstanding Common Shares
that has been determined by a majority of the Continuing Directors to be
adequate and otherwise in the best interests of the Company and its
stockholders. Where the Board of Directors has determined that a tender offer
constitutes a Permitted Offer, the Rights will not become exercisable to
purchase Common Shares or shares of the acquiring company (as the case may be)
at the discounted price described above.
Exchange Provision
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At any time after the acquisition by an Acquiring Person of 20% 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.
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Redemption
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At any time on or prior to the close of business on the earlier of (i) the
10th day following the acquisition by an Acquiring Person (the "Share
Acquisition Date") or such later date as may be determined by a majority of the
Continuing Directors then in office and publicly announced by the Company, 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 $.001 per Right.
Adjustments to Prevent Dilution
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The Purchase Price payable, the number of Rights, and the number of Series
A Preferred or 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 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
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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 Common Shares 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 provisions of the 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 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 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.
Rights and Preferences of the Series A Preferred
- ------------------------------------------------
Series A Preferred purchasable upon exercise of the Rights will not be
redeemable. Each share of Series A Preferred will be entitled to an aggregate
dividend of 1,000 times the dividend declared per Common Share. In the event of
liquidation, the holders of the Series A Preferred will be entitled
<PAGE>
to a minimum preferential liquidation payment equal to the greater of (i) $2,500
per share or (ii) 1,000 times the per share amount to be distributed to the
holders of the Common Shares. Each share of Series A Preferred will have 1,000
votes, voting together with the Common Shares. In the event of any merger,
consolidation or other transaction in which the Common Shares are changed or
exchanged, each share of Series A Preferred will be entitled to receive 1,000
times the amount received per Common Share. These rights are protected by
customary anti-dilution provisions.
Because of the nature of the dividend, liquidation and voting rights of the
shares of Series A Preferred, the value of the one one-thousandth interest in a
share of Series A Preferred purchasable upon exercise of each Right should
approximate the value of one Common Share.
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 the Company's Board of Directors and its
stockholders of any real opportunity to determine the destiny 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 20% 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
<PAGE>
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. The Rights may be redeemed by the Company at $.001 per Right within
ten days (or such later date as may be determined by a majority of the Board of
Directors then in office, excluding directors affiliated with an Acquiring
Person) after the accumulation of 20% 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
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.
However, 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.
<PAGE>
Item 2. Exhibits.
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*1. Preferred Shares Rights Agreement, dated as of October 23,
1996 between Catalytica, Inc. and ChaseMellon Shareholder
Services, L.L.P., including the Certificate of Designation,
the form of Rights Certificate and the Summary of Rights
attached thereto as Exhibits A, B and C, respectively.
2. Amendment No. 1, dated as of July 28, 1997, to the
Preferred Share Rights Agreement dated as of October 23,
1996 between Catalytica, Inc. and ChaseMellon Shareholder
Services, L.L.P.
<PAGE>
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.
Catalytica, Inc.
Date: July 28, 1997
By: /s/ Lawrence W. Briscoe
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Lawrence W. Briscoe
Vice President, Finance and Administration
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page
Number
Under
Sequential
Exhibit Numbering
No. Exhibit System
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<C> <S> <C>
*1 Preferred Shares Rights Agreement dated as of
October 23, 1996, between Catalytica, Inc. and
ChaseMellon Shareholder Services, L.L.P., including
the form of Rights Certificate and the Certificate of
Designation, the Summary of Rights Attached thereto as
Exhibits A, B and C, respectively.
2 Amendment No. 1, dated as of July 28, 1997, to the
Preferred Share Rights Agreement dated as of
October 23, 1996 between Catalytica, Inc. and
ChaseMellon Shareholder Services, L.L.P.
</TABLE>
__________________
* Incorporated by reference from Amendment No. 1 to the Registrant's 8-A
filed with the Commission on November 19, 1996.
<PAGE>
Exhibit 2
AMENDMENT NO. 1 DATED AS OF JULY 28, 1997
TO PREFERRED SHARES RIGHTS AGREEMENT
BETWEEN CATALYTICA, INC. AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
WHEREAS, Catalytica, Inc. (the "Company") and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (the "Rights Agent"), entered into the
Preferred Shares Rights Agreement dated as of October 23, 1996 (the "Rights
Agreement");
WHEREAS, the Company is required to execute and deliver this Amendment
No. 1 (the "Amendment") to the Rights Agreement to Morgan Stanley Capital
Partners III, L.P., Morgan Stanley Capital Investors, L.P. and MSCP III 892
Investors, L.P. (collectively, "MSCP") in connection with the Investment
Agreement dated June 25, 1997 by and between the Company and MSCP (the
"Investment Agreement");
WHEREAS, Section 27 of the Rights Agreement permits the Company to amend
the Rights Agreement in any respect without approval of the holders of rights
prior to the occurrence of a Triggering Event (as therein defined);
WHEREAS, a Triggering Event has not occurred;
WHEREAS, the Board of Directors of the Company authorized and approved this
Amendment at the Special Joint Meeting of the Board of Directors of the Company
and Catalytica Pharmaceuticals, Inc. on June 18, 1997; and
WHEREAS, the Company deems it desirable and in the best interests of the
Company to amend the Rights Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Rights Agreement, the parties hereto hereby agree as
follows:
1. NEW SECTION. Section 35 is hereby added to the Rights Agreement. Such
-----------
new section shall read in its entirety as follows:
"35. Exclusion of Certain Transactions by MSCP.
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Notwithstanding anything contained in this Agreement to the contrary:
(a) This Section 35 is included in this Agreement in connection with
the Investment Agreement dated June 25, 1997 (the "Investment
Agreement") by and among the Company and MSCP. This Section shall not
be effective unless and until the Closing (as defined in Section 2.02
of the Investment Agreement) of the transactions contemplated by the
Investment Agreement is consummated. In the event that the Investment
Agreement is terminated prior to the Closing, this Section 35 shall be
of no further force and effect and shall be considered to be deleted
from this Agreement.
<PAGE>
(b) The issuance and sale to MSCP of an aggregate of 30,000,000
shares of Class A Common Stock and Class B Common Stock of the
Company pursuant to the Investment Agreement shall in no event
result in (i) MSCP becoming an Acquiring Person, or (ii) a
distribution of Rights pursuant to this Agreement, or (iii) the
exercisability of Rights under this Agreement, or (iv) any other
defensive measures under this Agreement; provided, however, that
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this Section 35 shall in no way be construed to restrict, qualify,
expand or enlarge the rights of MSCP or of the Company under the
Investment Agreement. In the event of a conflict between the rights
and obligations of MSCP and the Company under this Agreement and
under the Investment Agreement, the provisions of the Investment
Agreement shall control.
(c) In no event shall this Section 35 be construed to provide a
general exception from the provisions of this Agreement for MSCP or
for its transactions beyond the exceptions that are specifically
provided in subsection (b) hereof.
(d) In no event shall this Section 35 be supplemented, amended or
changed in any respect without the prior written consent of MSCP."
2. NEW DEFINITION. Paragraph (rr) is hereby added to Section 1 of the
--------------
Rights Agreement to read as follows:
"(rr) 'MSCP' shall mean Morgan Stanley Capital Partners III, L.P.,
Morgan Stanley Capital Investors, L.P. and MSCP III 892 Investors,
L.P."
3. NO OTHER CHANGES. Except as expressly amended hereby, the Rights
----------------
Agreement shall remain in full force and effect.
4. DIRECTION OF COMPANY. Pursuant to Section 27 of the Rights Agreement,
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the Company directs the Rights Agent to execute this Amendment.
5. COUNTERPARTS. This Amendment may be executed in any number of
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counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute one and the
same instrument.
[Remainder of page intentionally left blank]
-2-
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CATALYTICA, INC.
/s/ Lawrence W. Briscoe
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Lawrence W. Briscoe, Vice President,
Finance and Administration, Chief Financial
Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent
Name: /s/ Asa Drew
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Asa Drew
Title: Assistant Vice President
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[Signature Page to Amendment No. 1 to Preferred Shares Rights Agreement]
