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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MERCURY INTERACTIVE CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 77-0224776
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(State of incorporation or organization) (IRS Employer Identification No.)
1325 Borregas Avenue
Sunnyvale, CA 94089
(Address of principal executive offices) (Zip Code)
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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
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(Title of Class)
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Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
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On July 5, 1996, pursuant to a Preferred Shares Rights Agreement (the
"Rights Agreement") between Mercury Interactive Corporation (the "Company") and
Wells Fargo Bank National Association, 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, $.002 par value ("Common Shares"), of the Company. The dividend was paid
on July 15, 1996 (the "Record Date") to stockholders of record as of the close
of business on that date. As described in the Rights Agreement, each Right
entitled the registered holder to purchase from the Company one one-thousandth
of a share of Series A Preferred at an exercise price of $70.00 (the "Purchase
Price"), subject to adjustment. The Rights issued were registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934 on a Registration Statement
on Form 8-A filed with the Securities and Exchange Commission on July 9, 1996.
On March 25, 1999, the Company's Board of Directors approved certain amendments
(the "AMENDMENTS") to the Rights Agreement to, among other things, increase the
exercise price of the Rights from $35.00 per Right (after adjustment) to $220.00
per Right, amend the trigger of the flip-in feature so that it is triggered in
the event a person or group acquires 15% or more of the Company's Common Stock
from 20% and to delete the provisions of the Rights Agreement that provided that
certain actions required the approval of "Continuing Directors," and to provide
that once the 15% threshold is crossed, the Rights are immediately non-
redeemable, and that the Distribution Date cannot be delayed. Certain changes
were also made to the provision addressing amendments and supplements.. The
Company and ChaseMellon Shareholder Services LLC (the "RIGHTS AGENT"), as
successor to Wells Fargo Bank National Association, entered into the AMENDMENT
TO RIGHTS AGREEMENT (the "1999 RIGHTS AMENDMENT") effective as of March 31,
1999, which reflects the Amendments.
The following summary of the principal terms of the Rights Agreement, as
amended by the Rights Amendment, is a general description only and is subject
to the detailed terms and conditions of the Rights Agreement, as amended by the
Rights Amendment. A copy of the Rights Amendment is attached as Exhibit 1 to
this Registration Statement and is incorporated herein by reference.
Rights Evidenced by Common Share Certificates
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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 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.
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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 following a public announcement that an Acquiring Person has become such,
or (ii) 10 days (or such later date as may be determined by a majority of the
Board of Directors) 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 of 15% or more of the
outstanding Common Shares. The earlier of such dates is referred to as the
"Distribution Date."
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. The Rights will expire on the earliest of (i)
July 15, 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 $220.00 per Right, one one-thousandth share of the
Series A Preferred. In the event that the Company does not have sufficient
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 a Person,
together with its Affiliates and Associates, becomes an Acquiring Person (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
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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 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 directors then in office 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 15% 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.
Redemption
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At any time on or prior to the time any Person becomes an Acquiring Person,
the Board of Directors may redeem the Rights in whole, but not in part, at a
price of $.002 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
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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.
No Stockholders' Rights Prior to Exercise
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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
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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, certain amendments or supplements may be made to the Rights
Agreement, but only if they do not adversely affect the interests of holders of
Rights (excluding the interests of any Acquiring Person).
Rights and Preferences of the Series A Preferred
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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 to a minimum
preferential liquidation payment equal to the greater of (i) $220.00 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
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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 15% 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. The Rights may be redeemed by the Company at $.002 per Right at any
time prior to the accumulation of 15% 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.
Item 2. Exhibits.
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1. Rights Amendment, dated as of March 31, 1999 between Mercury
Interactive Corporation and ChaseMellon Shareholder Services
LLC.
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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.
Mercury Interactive Corporation
Date: April 1, 1999
By:/s/ Sharlene Abrams
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Sharlene Abrams
Vice President of Finance and Administration
Chief Financial Officer and Secretary
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EXHIBIT INDEX
Page Number
Under
Sequential
Exhibit Numbering
No. Exhibit System
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1 Rights Amendment dated as of 1
March 31, 1999, between Mercury
Interactive Corporation and
ChaseMellon Shareholder Services LLC.
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EXHIBIT 1
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of
this 31st day of March, 1999 by and between MERCURY INTERACTIVE CORPORATION, a
Delaware corporation (the "Company"), and CHASEMELLON SHAREHOLDER SERVICES, LLC,
successor to WELLS FARGO BANK NATIONAL ASSOCIATION, a national bank association,
as rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of July 5, 1996 (the "Rights Agreement");
WHEREAS, the parties desire to amend the Rights Agreement in
connection with the execution and delivery of the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of
the Rights Agreement is hereby amended by substituting the percentage "15%" for
the percentage "20%" in each place it appears in Section 1.
2. Section 1 of the Rights Agreement is hereby amended by amending
subsection (g) to read in its entirety as follows:
(g) Intentionally omitted.
3. Subsection (h) of Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
(h) "Distribution Date" shall mean the earlier of
(i) the Close of Business on the tenth day after the
Shares Acquisition Date or (ii) the Close of Business
on the tenth day (or such later date as may be determined
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by action of the Board of Directors) after the date
that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for
or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the
Exchange Act, if, assuming the successful consummation
thereof, such Person would be the Beneficial Owner of
15% or more of the shares of Common Stock then
outstanding.
4. Subsection (l) of Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
(l) "Permitted Offer" shall mean a tender offer
for all outstanding Common Shares made in the manner
prescribed by Section 14(d) of the Exchange Act and the
rules and regulations promulgated thereunder; provided,
however, that a majority of the directors then in
office have determined that the offer is both adequate
and otherwise in the best interests of the Company and
its stockholders (taking into account all factors that
the Board of Directors deem relevant, including without
limitation prices that could reasonably be achieved if
the Company or its assets were sold on an orderly basis
designed to realize maximum value).
5. Section 2 of the Rights Agreement is hereby amended by deleting
from the first sentence the following clause: "and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the Common Shares)".
6. Section 7(b) of the Rights Agreement is hereby amended by
changing the Purchase Price to Two Hundred and Twenty Dollars ($220.00).
7. The first paragraph of Section 18 is hereby modified and amended
by inserting the following sentence at the end of the paragraph: "Anything to
the contrary notwithstanding, in no event shall the Rights Agent be liable for
special, indirect, punitive, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage."
8. Subsection (a) of Section 23 of the Rights Agreement is hereby
amended to read in its entirety as follows:
(a) The Board of Directors of the Company may, at
its option, at any time prior to such time as any
Person becomes an Acquiring Person redeem all but not
less than all the then outstanding Rights at a
redemption price of $.002 per Right, appropriately
adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof
(such redemption price being herein referred to as the
"Redemption Price"), and
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the Company may, at its option, pay the Redemption
Price either in Common Shares (based on the current per
share market price thereof (as determined pursuant to
Section 11(d) hereof) at the time of redemption) or
cash. Such redemption of the Rights by the Company may
be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole
discretion may establish.
9. Subsection (a) of Section 24 of the Rights Agreement is hereby
amended to read in its entirety as follows:
(a) Subject to applicable laws, rules and
regulations, and subject to subsection (c) below, the
Board of Directors of the Company may, at its option,
at any time after the occurrence of a Triggering Event,
exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section
7(e) hereof) for Common Shares at an exchange ratio of
one Common Share per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the
"Ratio of Exchange"). Notwithstanding the foregoing,
the Board of Directors shall not be empowered to effect
such exchange at any time after any Person (other than
the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or
pursuant to the terms of any such plan), together with
all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50% or more of the Common
Shares then outstanding.
10. Section 27 of the Rights Agreement is hereby amended to read in
its entirety as follows:
Section 27. Supplements and Amendments. Prior to the
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Distribution Date, the Company may supplement or amend this
Agreement in any respect without the approval of any holders
of Rights and the Rights Agent shall, if the Company so
directs, execute such supplement or amendment. From and
after the Distribution Date, the Company and the Rights
Agent may from time to time supplement or amend this
Agreement without the approval of any holders of Rights in
order to (i) cure any ambiguity, (ii) correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) shorten
or lengthen any time period hereunder or (iv) to change or
supplement the provisions hereunder in any manner that the
Company may deem necessary or desirable; provided, however,
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that no such supplement or amendment made pursuant to this
sentence shall be made that adversely affects the interests
of the holders of Rights (other than an Acquiring Person or
an Affiliate or Associate of an Acquiring Person); provided,
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further, that this Agreement may not be supplemented or
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amended pursuant to clause (iii) of this sentence (A) to
lengthen a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable
or (B) to
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lengthen or shorten any other time period unless such
lengthening or shortening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits
to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Company that
states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, and such
supplement or amendment does not change or increase the
Rights Agent's duties, liabilities or obligations the Rights
Agent shall execute such supplement or amendment. Prior to
the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the
holders of Common Shares.
11. Section 29 of the Rights Agreement is hereby amended to read in
its entirety as follows:
Section 29. Determinations and Actions by the Board of
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Directors, etc. For all purposes of this Agreement, any
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calculation of the number of Common Shares outstanding at
any particular time, including for purposes of determining
the particular percentage of such outstanding Common Shares
of which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule 13d-3(d)(1)(i)
of the General Rules and regulations under the Exchange Act.
The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted
to the Board, or the Company, or as may be necessary or
advisable in the administration of this Agreement,
including, without limitation, the right and power to (i)
interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including a determination
to redeem or not redeem the Rights or to amend the
Agreement). All such actions, calculations, interpretations
and determinations (including, for purposes of clause (y)
below, all omissions with respect to the foregoing) which
are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights Certificates and all other
parties and (y) not subject the Board to any liability to
the holders of the Rights. The Rights Agent shall always be
entitled to assume the Board acted in good faith and shall
be fully protected and incur no liability in reliance
thereon.
12. The Rights Agreement, as amended by this Amendment, shall remain
in full force and effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
ATTEST: MERCURY INTERACTIVE CORPORATION
By: /s/ Heather Chisler By: /s/ Sharlene Abrams
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Name: Heather Chisler Name: Sharlene Abrams
Title: Administrative Assistant Title: Vice President of Finance and
Administration and Chief Financial
Officer and Secretary
ATTEST: CHASEMELLON SHAREHOLDER SERVICES, LLC
Rights Agent
By: /s/ Gloria Pouncil By: /s/ Asa Drew
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Name: Gloria Pouncil Name: Asa Drew
Title: Relationship Manager Title: Assistant Vice President
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