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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/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
ENCAD, INC.
(Exact name of registrant as specified in charter)
DELAWARE 000-23034 95-3672088
(State of incorporation or (Commission (IRS Employer
organization) File Number) Identification No.)
6059 Cornerstone Court West, San Diego, California, 92121
(Address of principal executive offices)
Registrant's telephone number, including area code: (619) 452-0882
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
(TITLE OF CLASS)
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED STOCK PURCHASE RIGHTS
(Title of Class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On November 17, 1998, ENCAD, Inc. (the "Company") amended its Rights
Agreement, dated March 19, 1998 (the "Rights Plan"), to eliminate those
provisions that require that certain actions may only be taken by "Continuing
Directors." This Amendment to the Rights Plan was made in response to the
Delaware Court of Chancery's recent decision in CARMODY V. TOLL BROTHERS, INC.
In the view of the Company's Board of Directors, based on advice of counsel, the
TOLL BROTHERS decision has cast doubt on the legality under Delaware law of
"Continuing Directors" provisions, also referred to as "dead-hand" provisions,
in many existing shareholder rights plans. Although the opinion related to the
denial of a motion to dismiss an action challenging the "Continuing Directors"
provision and not an opinion addressing the actual validity of the provision
under Delaware law, the Delaware court stated that a "Continuing Directors"
provision was open to challenge under Delaware law on both statutory and
fiduciary grounds. A "Continuing Directors" provision provides that outstanding
rights can only be redeemed by "continuing directors," which is generally
defined to mean directors who were members of the board at the time the Rights
Agreement was adopted and any other person who subsequently becomes a member of
the board if such person's nomination for election to the board was recommended
or approved by a majority of the continuing directors. While the Company's
Rights Plan differs in significant respects from the plan considered in the TOLL
BROTHERS case, particularly as regards to the "Continuing Directors" provisions
thereof, the Board of Directors believes the disputed validity of these
provisions under the TOLL BROTHERS opinion warrants action to amend the Rights
Plan. The Form of First Amendment to the Rights Agreement is attached hereto as
Exhibit 1 and is incorporated by reference herein.
Item 2. EXHIBITS.
1. Form of First Amendment to the Company's Rights Plan.
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.
ENCAD, INC.
DATE: November 18, 1998 By: /s/ David A. Purcell
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Name: David A. Purcell
Title: Chairman and C.E.O.
2
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EXHIBIT INDEX
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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1. Form of First Amendment to the Company's Rights Plan.
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EXHIBIT 1
FIRST AMENDMENT TO THE RIGHTS AGREEMENT
AND CERTIFICATION OF COMPLIANCE WITH SECTION 27 THEREOF
Pursuant to Section 27 of the Rights Agreement (the "Agreement") dated
as of March 19, 1998, between ENCAD, Inc., a Delaware corporation (the
"Company"), and Harris Trust Company of California (the "Rights Agent"), the
Company and the Rights Agent hereby amend the Agreement as of November 17, 1998,
as provided below.
1. CERTAIN DEFINITIONS. Section 1 of the Agreement shall be amended
to delete the definition of Continuing Directors.
2. ISSUE OF RIGHTS CERTIFICATES. Section 3(a) of the Agreement
shall be amended by replacing the phrase "a majority of the Continuing" in the
first sentence of the paragraph with the phrase "the Board of".
3. FORM OF RIGHTS CERTIFICATES. Section 4(b)(iii)(B) of the
Agreement shall be amended by replacing the phrase "a majority of the
Continuing" with the phrase "the Board of".
4. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
Section 7(e)(iii)(B) shall be amended by replacing the phrase "a majority of the
Continuing" with the phrase "the Board of".
5. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS. Section 11 shall be amended as follows:
(a) The phrase ",upon approval by a majority of the Continuing
Directors," which appears four times in subsection (a)(iii) and once in
subsection (d)(ii) shall be deleted.
(b) The phrase "a majority of the Continuing" in the second
sentence of subsection (b), the first sentence of subsection (c) and the
second sentence of subsection (d) shall be replaced with the phrase "the
Board of".
6. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. Section 14 (a) shall be
amended by deleting the phrase ",upon approval by a majority of the Continuing
Directors," in the last sentence of the paragraph.
7. ISSUANCE OF NEW RIGHTS CERTIFICATES. Section 22 shall be amended
by deleting the phrase ",upon approval by a majority of the Continuing
Directors," in the first and second sentences of the paragraph.
8. REDEMPTION AND TERMINATION. Section 23 shall be amended as
follows:
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(a) The phrase "a majority of the Continuing" in the first
sentence of subsection (a) shall be replaced with the phrase "the Board
of".
(b) The proviso in subsection (a) which reads "provided,
however, that, notwithstanding anything to the contrary contained in this
Section 23(a), the Company may not take any action pursuant to this Section
23(a) unless (x) at the time of the action of the Board of Directors of the
Company approving such redemption and the form of payment of the Redemption
Price, there are then in office not less than two Continuing Directors and
(y) such action is approved by a majority of the Continuing Directors then
in office" shall be deleted. The phrase "a majority of the Continuing" in
the last sentence of subsection (a) shall be replaced with the phrase "the
Board of".
(c) The phrase "a majority of the Continuing" in the first and
third sentences of subsection (b) shall be replaced with the phrase "the
Board of".
9. EXCHANGE. Section 24 shall be amended by replacing the phrase "a
majority of the Continuing" in the first sentence of each of subsection (a) and
subsection (c) with the phrase "the Board of". The phrase ", upon approval by a
majority of the Continuing Directors" in the second sentence of subsection (c)
shall be deleted.
10. SUPPLEMENTS AND AMENDMENTS. Section 27 shall be amended by
deleting the phrase ",upon approval by a majority of the Continuing Directors,"
in the first and second sentences of the paragraph.
11. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. Section 29
shall be amended as follows:
(a) The phrase "or the Continuing Directors" in the last
sentence of subsection (a) shall be deleted.
(b) Subsection (b) shall be deleted in its entirety.
12. SEVERABILITY. Section 31 shall be amended by deleting the phrase
",upon approval by a majority of the Continuing Directors," in the paragraph.
13. EXHIBIT C. Exhibit C shall be amended by replacing the word
"Continuing," which appears five times in Exhibit C, with the phrase "Board of".
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The undersigned officer of the Company, being an appropriate officer
of the Company and authorized to do so by resolution of the board of directors
of the Company dated as of November 13, 1998, hereby certifies to the Rights
Agent that these amendments are in compliance with the terms of Section 27 of
the Agreement.
ENCAD, Inc.
By: /s/ David A. Purcell
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Name: David A. Purcell
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Title: Chairman and C.E.O.
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Acknowledged and Agreed:
Harris Trust Company of California,
as Rights Agent
By: /s/ John Castellanos
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Name: John Castellanos
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Title: Assistant Vice President
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