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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NUMBER 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FTP SOFTWARE, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Massachusetts 04-2906463
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(STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
2 High Street, North Andover, Massachusetts 01845
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. []
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. []
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
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(IF APPLICABLE)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE ON WHICH EACH
TITLE OF EACH CLASS TO BE SO REGISTERED CLASS IS TO BE REGISTERED
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<S> <C>
None None
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Junior Preferred Stock Purchase Rights
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(TITLE OF CLASS)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On December 1, 1995, the Board of Directors (the "Board") of FTP
Software, Inc. (the "Company") declared a dividend of one purchase right (a
"Right") for every outstanding share of the Company's common stock, $.01 par
value (the "Common Stock"). The Rights will be distributed to holders of record
of the Common Stock as of the close of business on December 8, 1995 (the
"Dividend Record Date"). The terms of the Rights are set forth in a Rights
Agreement dated as of December 1, 1995 between the Company and State Street Bank
and Trust Company, as Rights Agent (the "Rights Agent"), as amended by Amendment
to Rights Agreement dated as of November 7, 1996 between the Company and the
Rights Agent, by Amendment No. 2 to Rights Agreement dated as of February 27,
1998 between the Company and the Rights Agent and by Amendment No. 3 to Rights
Agreement dated as of June 15, 1998 between the Company and the Rights Agent (as
so amended, the "Rights Agreement"). The Rights Agreement provides for the
issuance of one Right for every share of Common Stock issued and outstanding on
the Dividend Record Date and for each share of Common Stock which is issued or
sold after that date and prior to the "Distribution Date" (as defined below).
Each Right entitles the holder to purchase from the Company
one-hundredth of a share of Junior Preferred Stock, $.01 par value, of the
Company (the "Junior Preferred Stock"), at a price of $150 per one-hundredth of
a share, subject to adjustment in certain events. The Rights will expire on
December 1, 2005 (the "Expiration Date"), or upon the earlier redemption of the
Rights, and are not exercisable until the Distribution Date.
No separate Rights certificates will be issued at the present time.
Until the Distribution Date (or earlier redemption or expiration of the Rights),
(i) the Rights will be evidenced by the outstanding Common Stock certificates
and will be transferred with and only with the Common Stock certificates, (ii)
new Common Stock certificates issued after the Dividend Record Date upon
transfer or new issuance of the Common Stock will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any Common Stock certificate will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
The Rights will separate from the Common Stock on the Distribution
Date. Unless otherwise determined by a majority of the Board then in office, the
Distribution Date (the "Distribution Date") will occur on the earlier of (i) the
tenth business day following the later of (A) the date of a public announcement
that a person, together with its affiliates and associates, except as described
below, has acquired or obtained the right to acquire beneficial ownership of 15%
or more of the outstanding shares of Common Stock (collectively, an "Acquiring
Person"), except that the term "Acquiring Person" shall not include (y) Kopp
Investment Advisors, Inc. ("KIA"), Kopp Holding Company ("KHC") or LeRoy C. Kopp
("Kopp") (but no purchaser or assignee of any such person or direct or indirect
purchaser or transferee of any shares of Common Stock of the Company from any
such person) so long as (1) the number of shares of Common Stock of the Company
beneficially owned by all such persons does not exceed 6,722,400 shares in the
aggregate (such number to be adjusted in the event of any stock
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dividend, stock split or combination of shares, recapitalization, repurchase of
shares by the Company or any other change in the Company's capital stock which
in the determination of the Board in its sole discretion requires an adjustment
to such number to maintain it at less that 20% of the Company's outstanding
shares), (2) none of such persons has filed a Schedule 13D or Schedule 13G that
expresses any intention or reservation of the right (I) to control or influence
the management or policies of the Company or (II) to engage in any of the
actions specified in Item 4 of such Schedule 13D (other than the disposition of
Common Stock and the acquisition of Common Stock up to the maximum number set
forth above, provided that the condition in the preceding clause (2)(I) is met),
and (3) neither KHC nor Kopp owns directly 5% or more of the shares of Common
Stock then outstanding, or (z) NetManage, Inc. ("NMI") as a result of the
execution, delivery or performance by the parties thereto of the Agreement and
Plan of Reorganization dated as of June 15, 1998 among NMI, Amanda Acquisition
Corp., a wholly-owned subsidiary of NMI, and the Company, as the same may be
amended from time to time, or the consummation of the transactions contemplated
thereby pursuant to the terms thereof or (B) the date on which an executive
officer of the Company has actual knowledge that an Acquiring Person has become
such (the "Stock Acquisition Date"), or (ii) the tenth business day following
commencement of a tender offer or exchange offer that would result in any
person, together with its affiliates and associates, owning 15% or more of the
outstanding Common Stock. After the Distribution Date, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the Distribution Date
and thereafter such separate Rights Certificates alone will evidence the Rights.
The Board may delay the distribution of the Certificates.
If at any time after December 1, 1995, any person or group of
affiliated or associated persons (other than the Company and its affiliates)
shall become an Acquiring Person, each holder of a Right will have the right to
receive shares of Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a market value of two times the exercise
price of the Right. Also, if the Company were acquired in a merger or other
business combination, or if more than 25% of its assets or earning power were
sold, each holder of a Right would have the right to exercise such Right and
thereby receive common stock of the acquiring company with a market value of two
times the exercise price of the Right. Following the occurrence of any of the
events described in this paragraph, any Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person shall immediately become null and void.
The Board may, at its option, at any time after any person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Rights for shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after December 1, 1995 (as the same
may be adjusted, the "Exchange Ratio"). The Board, however, may not effect an
exchange at any time after any person (other than (i) the Company, (ii) any
subsidiary of the Company, (iii) any employee benefit plan of the Company or of
any subsidiary of the Company or (iv) any entity holding Common Stock for or
pursuant to the terms of any such plan), together with all affiliates of such
person, becomes the beneficial owner of 50% or more of the Common Stock then
outstanding. Immediately upon the action
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of the Board ordering the exchange of any Rights and without any further action
and without any notice, the right to exercise such Rights will terminate and the
only right thereafter of a holder of such Rights will be to receive that number
of shares of Common Stock equal to the number of such Rights held by the holder
multiplied by the Exchange Ratio.
The exercise price of the Rights, and the number of one-hundredths of a
share of Junior Preferred Stock or other securities or property issuable upon
exercise of the Rights, are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Junior Preferred Stock, (ii) upon the grant to
holders of the Junior Preferred Stock of certain rights or warrants to subscribe
for shares of the Junior Preferred Stock or certain convertible securities at
less than the current market price of the Junior Preferred Stock, or (iii) upon
the distribution to holders of the Junior Preferred Stock of evidences of
indebtedness or assets (excluding cash dividends paid out of the earnings or
retained earnings of the Company and certain other distributions) or of
subscription rights or warrants (other than those referred to above).
At any time prior to the close of business on December 1, 2005 or the
earlier redemption of the Rights (the "Expiration Date"), the Company, by a
majority vote of the Board, may redeem the Rights at a redemption price of $.01
per Right, subject to adjustment in certain events (as the same may be adjusted,
the "Redemption Price"). Immediately upon the action of the Board electing to
redeem the Rights, the right to exercise the Rights will terminate, and the only
right of the holders of Rights will be to receive the Redemption Price.
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.
The Rights Agreement may be amended by the Board at any time prior to
the Distribution Date without the approval of the holders of the Rights. From
and after the Distribution Date, the Rights Agreement may be amended by the
Board without the approval of the holders of the Rights in order to cure any
ambiguity, to correct any defective or inconsistent provisions, to change any
time period for redemption or any other time period under the Rights Agreement
or to make any other changes that do not adversely affect the interests of the
holders of the Rights (other than any Acquiring Person or its affiliates and
associates or their transferees).
The form of the original Rights Agreement dated as of December 1, 1995
between the Company and the Rights Agent, specifying the terms of the Rights
(including as exhibits the form of Rights Certificate and the Summary of Rights)
is incorporated herein by reference as an exhibit, the form of Amendment to
Rights Agreement dated as of November 7, 1996 between the Company and the Rights
Agent is incorporated herein by reference as an exhibit, the form of Amendment
No. 2 to Rights Agreement dated as of February 27, 1998 between the Company and
the Rights Agent is filed herewith as an exhibit and the form of Amendment No. 3
to Rights Agreement dated as of June 15, 1998 between the Company and the Rights
Agent,
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is incorporated herein by reference as an exhibit. The foregoing description of
the Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement.
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ITEM 2. EXHIBITS.
1. Form of Rights Agreement dated as of December 1, 1995 (the
"Rights Agreement") between FTP Software, Inc. and State
Street Bank and Trust Company, as Rights Agent.(1)
2. Form of Certificate of Designation with respect to the Junior
Preferred Stock, par value $.01 per share, of FTP Software,
Inc. (attached as Exhibit A to the Rights Agreement).(1)
3. Form of Rights Certificate (attached as Exhibit B to the
Rights Agreement). Pursuant to the Rights Agreement, printed
Rights Certificates will not be mailed until the Distribution
Date (as defined in the Rights Agreement).(1)
4. Summary of Rights (attached as Exhibit C to the Rights
Agreement).(1)
5. Form of Amendment to Rights Agreement dated as of November 7,
1996 between FTP Software, Inc. and State Street Bank and
Trust Company, as Rights Agent.(2)
6. Form of Amendment No. 2 to Rights Agreement dated as of
February 27, 1998 between FTP Software, Inc. and State Street
Bank and Trust Company, as Rights Agent.*
7. Form of Amendment No. 3 to Rights Agreement dated as of June
15, 1998 between FTP Software, Inc. and State Street Bank and
Trust Company, as Rights Agent.(3)
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* Filed herewith.
(1) Incorporated herein by reference to the Registration Statement on
Form 8-A of FTP Software, Inc. filed with the Commission on December 12, 1995.
(2) Incorporated herein by reference to the Quarterly Report on Form
10-Q of FTP Software, Inc. for the quarter ended September 30, 1996, filed with
the Commission on November 14, 1996.
(3) Incorporated herein by reference to the Current Report on Form 8-K
of FTP Software, Inc. filed with the Commission on June 19, 1998.
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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.
FTP SOFTWARE, INC.
Date: July 9, 1998 By: /s/ James A. Tholen
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James A. Tholen
Senior Vice President, Chief Operating
Officer and Chief Financial Officer
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Exhibit 6
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 to Rights Agreement (this "Amendment"), dated as
of February 27, 1998 but effective as of November 7, 1996, amends the Rights
Agreement dated as of December 1, 1995 between FTP Software, Inc., a
Massachusetts corporation (the "Company"), and State Street Bank and Trust
Company, a Massachusetts trust company (the "Rights Agent"), as amended by
Amendment to Rights Agreement dated as of November 7, 1996 between the Company
and the Rights Agent (the "Rights Agreement").
WHEREAS, the Board of Directors of the Company has approved an
amendment to the Rights Agreement pursuant to Section 27 thereof;
NOW THEREFORE, in consideration of these premises, the mutual
agreements herein set forth, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged by each party, the parties hereto
hereby agree as follows:
1. Amendment. The definition of "Acquiring Person" set forth in Section
1(a) of the Rights Agreement is hereby amended to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding,
but shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, (iv) any Person organized, appointed, or
established by the Company or a Subsidiary of the Company pursuant to
the terms of any plan described in clause (iii) above or (v) any Person
who has reported or is required to report its or their beneficial
ownership (but less than 20%) on Schedule 13G under the Exchange Act
(or any comparable or successor report) or on Schedule 13D under the
Exchange Act (or any comparable or successor report) which Schedule 13D
does not state any intention to or reserve the right to control or
influence the management or policies of the Company or engage in any of
the actions specified in Item 4 of such Schedule (other than the
disposition of the Common Stock) and, within 10 Business Days of being
requested by the Company to advise it regarding the same, certifies to
the Company that such Person acquired shares of Common Stock in excess
of 14.9% inadvertently or without knowledge of the terms of the Rights
and who, together with all of such Person's Affiliates, thereafter does
not acquire additional shares of Common Stock while the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding;
provided, however, that if the Person requested to so certify fails to
do so within 10 Business Days, then such Person shall become an
Acquiring Person on the day immediately following the last day of such
10 Business Day Period.
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As used above, the term "Acquiring Person" shall not include
Kopp Investment Advisors, Inc. ("KIA"), Kopp Holding Company ("KHC") or
LeRoy C. Kopp ("Kopp") (but no purchaser or assignee of any such Person
or direct or indirect purchaser or transferee of any shares of Common
Stock of the Company from any such Person) so long as (A) the number of
shares of Common Stock of the Company beneficially owned by all such
Persons does not exceed 6,722,400 shares in the aggregate (such number
to be adjusted in the event of any stock dividend, stock split or
combination of shares, recapitalization, repurchase of shares by the
Company or any other change in the Company's capital stock which in the
determination of the Board in its sole discretion requires an
adjustment to such number to maintain it at less than 20% of the
Company's outstanding shares), (B) none of such Persons has filed a
Schedule 13D or Schedule 13G that expresses any intention or
reservation of the right (1) to control or influence the management or
policies of the Company or (2) to engage in any of the actions
specified in Item 4 of such Schedule 13D (other than (a) the
disposition of Common Stock and (b) the acquisition of Common Stock up
to the maximum number set forth above, provided that the condition in
the preceding clause (B)(1) is met) and (C) neither KHC nor Kopp owns
directly 5% or more of the shares of Common Stock then outstanding.
2. Effect of Amendment. Except as expressly amended hereby, the Rights
Agreement shall remain in full force and effect.
3. Governing Law. This Amendment shall be deemed to be a contract made
under the laws of The Commonwealth of Massachusetts and for all purposes shall
be governed by and construed in accordance with the laws of said state
applicable to contracts made and to be performed entirely within said state.
4. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day first above written.
ATTEST: FTP SOFTWARE, INC.
By___________________________________
Name:
Title:
ATTEST: STATE STREET BANK AND TRUST
COMPANY
By___________________________________
Name:
Title:
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