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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
XCELLENET, INC.
(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-1749705
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(State of Incorporation (I.R.S. Employer Identification No.)
or Organization)
5 Concourse Parkway, Suite 850
Atlanta, Georgia 30328
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of securities
securities pursuant to pursuant to Section 12(g) of the
Section 12(b) of the Exchange Act Exchange Act and is effective pursuant
and is effective pursuant to General to General Instruction A.(d), please
Instruction A.(c), please check the following box.[x]
check the following box. [_]
Securities Act registration statement file number to which this form relates:N/A
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
Securities to be registered pursuant to Section 12(g) of the Act:
Series G Junior Participating 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 November 21, 1997, XcelleNet, Inc. (the "Company") entered into a
Shareholder Protection Rights Agreement pursuant to which it will distribute one
right (a "Right") for each outstanding share of the Company's Common Stock, par
value $0.01 per share (the "Common Stock"), to shareholders of record at the
close of business on December 8, 1997 and for each share of Common Stock issued
by the Company thereafter and prior to the Separation Time (as described below).
Each Right entitles the registered holder to purchase from the Company one one-
hundredth (1/100th) of a share (a "Unit") of Series G Junior Participating
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), at a
purchase price of $75.00 per Unit (the "Exercise Price"), subject to adjustment.
The description and terms of the Rights are set forth in a Shareholder
Protection Rights Agreement between the Company and SunTrust Bank, Atlanta, as
Rights Agent, dated November 21, 1997 (the "Rights Agreement").
Initially, the Rights will be transferable only with the shares of Common
Stock with respect to which they were distributed. Until the Separation Time
the Rights will be evidenced by the certificates representing the shares of
outstanding Common Stock with which they are associated, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common Stock
and the Separation Time will occur upon the earlier of (i) ten business days
(unless otherwise accelerated or delayed by the Board of Directors with the
concurrence of a majority of the members of the Board of Directors of the
Company who are not an Acquiring Person (as defined below), or a representative
or nominee of an Acquiring Person or an Affiliate or Associate of any of the
foregoing (the "Continuing Directors")) following public announcement by the
Company that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, obtained the right to acquire, or otherwise
obtained beneficial ownership of 15% or more of the then-outstanding shares of
Common Stock, or (ii) ten business days (unless otherwise delayed by the Board
of Directors with the concurrence of a majority of the Continuing Directors)
following the commencement of a tender offer or exchange offer that would result
in a person or group beneficially owning 15% or more of the then-outstanding
shares of Common Stock. An Acquiring Person does not include (a) any person who
is a beneficial owner of 15% or more of the Common Stock on November 21, 1997
(the date of adoption of the Rights Agreement), unless such person or group
shall thereafter acquire beneficial ownership of additional Common Stock and
fails to reduce its beneficial ownership of Common Stock to previous levels, (b)
a person who acquires beneficial ownership of 15% or more of the Common Stock
without any intention to affect control of the Company and who thereafter
promptly divests sufficient shares so that such person ceases to be the
beneficial owner of 15% or more of the Common Stock, or (c) a person who is or
becomes a beneficial owner of 15% or more of the Common Stock as a result of an
option granted by the Company in connection with an agreement to acquire or
merge with the Company prior to a Flip-In Date (as defined below).
Until the Separation Time, (i) the Rights will be evidenced by Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after December 8, 1997
will bear a legend
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incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates representing outstanding Common Stock will also
constitute the surrender for transfer of the Rights associated with the Common
Stock represented by such certificate.
Promptly after the Separation Time, Rights Certificates will be mailed to
holders of record of Common Stock as of the close of business on the date when
the Separation Time occurs (other than holders of Rights that are or were
beneficially owned by an Acquiring Person or an affiliate or associate thereof
or by any transferee of any of the foregoing, which Rights shall be void) and,
thereafter, the separate Rights Certificates alone will represent the Rights.
If a Flip-In Date occurs (i.e., the close of business ten business days
following a public announcement by the Company that a person has become an
Acquiring Person), and if the Company has not redeemed the Rights as described
below, then a Right entitles the holder thereof to acquire shares of Common
Stock (rather than Preferred Stock) having a value equal to twice the Right's
exercise price. Instead of issuing shares of Common Stock upon exercise of a
Right following a Flip-In Date, the Company may substitute therefor shares of
Preferred Stock at a ratio of one one-hundredth of a share of Preferred Stock
for each share of Common Stock so issuable. In the event there are not
sufficient treasury shares or authorized but unissued shares of Common Stock or
Preferred Stock to permit exercise in full of the Rights, the Company may
substitute cash, debt or equity securities or other assets (or a combination
thereof). In addition, the Company, upon the action of the Board of Directors,
provided there are Continuing Directors then in office and that a majority of
the Continuing Directors concur, may, after a Flip-In Date and prior to the time
that an Acquiring Person becomes the beneficial owner of more than 50% of the
Common Stock, elect to exchange all outstanding Rights (other than Rights that
have become void) for shares of Common Stock at an exchange ratio of one share
of Common Stock per Right, as adjusted. Notwithstanding any of the foregoing,
Rights that are, or (under certain circumstances set forth in the Rights
Agreement) were, beneficially owned by any person on or after the date such
person becomes an Acquiring Person will be null and void.
In addition, the Rights Agreement provides that if an Acquiring Person
controls the Company's Board of Directors, then Company shall not enter into an
agreement with respect to, consummate or permit to occur any: (i) consolidation,
merger or share exchange if either the Acquiring Person or an affiliate or
associate of the Acquiring Person is a party to the transaction or the terms of
the transaction are not the same for the Acquiring Person as for the other
holders of Common Stock, or (ii) sale or transfer of a majority of the Company's
assets, unless the Company enters into an agreement for the benefit of the
holders of the Rights providing that upon consummation of such transaction each
Right shall constitute the right to purchase stock in the acquiring entity
having a value equal to twice the exercise price of the Rights for an amount in
cash equal to the exercise price of the Rights.
The Rights are not exercisable until the Separation Time and will expire at
the close of business on November 21, 2007 unless earlier exchanged or redeemed
by the Company as described below.
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At any time until the close of business on the Flip-In Date, the Company
may, upon the action of the Board of Directors if there are Continuing Directors
then in office and a majority of the Continuing Directors concur, elect to
redeem the Rights at a price of $0.01 per Right. The Continuing Directors may
condition redemption of the Rights upon the occurrence of a specified future
time or event.
The exercise price payable and the number of Rights outstanding are subject
to adjustment from time to time to prevent dilution in the event of a stock
dividend, stock split or reverse stock split, or other recapitalization which
would change the number of shares of Common Stock outstanding.
If prior to the Separation Time, the Company distributes securities or assets
in exchange for Common Shares (other than regular cash dividends or a dividend
paid solely in Common Shares) whether by dividend, reclassification, or
otherwise, the Corporation shall make such adjustments, if any, in the Exercise
Price, number of Rights and otherwise as the Board of Directors deems
appropriate.
Any provisions of the Rights Agreement may be amended at any time prior to
the close of business on the Flip-In Date without the approval of holders of the
Rights, and thereafter, the Rights Agreement may be amended without approval of
the Rights holders in any way which does not materially adversely affect the
interests of the Rights holders generally or to cure an ambiguity or to correct
or supplement any provision which may be inconsistent with any other provision
or otherwise defective.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder 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 shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable.
As of October 31, 1997, there were 8,274,206 shares of Common Stock
outstanding and 2,604,856 shares of Common Stock subject to outstanding stock
options. Each holder of an outstanding share of Common Stock at the close of
business on December 8, 1997 will receive one Right. So long as the Rights
Agreement remains in effect and the Rights continue to remain attached to and
trade with the Common Shares, the Company will issue one Right for each share of
Common Stock issued between the record date for issuance of the Rights and the
Separation Time, so that all outstanding shares have attached Rights. A total
of 250,000 shares of Preferred Stock have been initially reserved for issuance
upon exercise of the Rights. The number of shares of Preferred Stock subject to
the Rights may be increased or decreased (but not below the number of shares
then outstanding) by the Board of Directors of the Company.
Each Unit of Preferred Stock will receive dividends at a rate per Unit
equal to any dividends (except dividends payable in Common Stock) paid with
respect to a share of Common Stock and, on a quarterly basis, an amount per
whole share of Preferred Stock
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equal to the excess of $1.00 over the aggregate dividends per whole share of
Preferred Stock during the immediately preceding three-month period.
In the event of liquidation, the holder of each Unit of Preferred Stock
will receive a preferred liquidation payment equal to the greater of $.01 or the
per share amount paid in respect of a share of Common Stock.
Each Unit of Preferred Stock will have one vote, voting together with the
Common Stock.
In the event of any merger, consolidation, statutory share exchange or
other transaction in which shares of Common Stock are exchanged, each Unit of
Preferred Stock will be entitled to receive the per share consideration paid in
respect of each share of Common Stock.
The rights of holders of the Preferred Stock as to dividends, liquidation
and voting, and in the event of mergers, statutory share exchanges and
consolidations, are protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the economic value of one Unit of Preferred Stock that may be
acquired upon the exercise of each Right should approximate the economic value
of one share of Common Stock.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors of the Company (with, where
required by the Rights Agreement, the concurrence 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, statutory
share exchange or other business combination approved by a majority of the
Continuing Directors since the Rights may be redeemed by the Company upon
resolution of the Board of Directors with the concurrence of a majority of the
Continuing Directors at any time on or prior to the close of business ten
business days after announcement by the Company that a person has become an
Acquiring Person. 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. 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. To the extent any potential
acquirors are deterred by the Rights, the Rights may have the effect of
preserving incumbent management in office.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an exhibit to the Company's Current Report on Form 8-K
dated November 21, 1997 and is incorporated herein by reference. The foregoing
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to such exhibit.
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ITEM 2. EXHIBITS.
1. Shareholder Protection Rights Agreement, dated November 21, 1997, between
XcelleNet, Inc. and SunTrust Bank, Atlanta (which includes as Exhibit B thereto
the Form of Right Certificate), incorporated herein by reference to Exhibit 99.1
of XcelleNet, Inc.'s Form 8-K dated November 21, 1997.
2. Press release dated November 24, 1997, incorporated herein by reference
to Exhibit 99.2 of XcelleNet, Inc.'s Form 8-K dated November 21, 1997.
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SIGNATURES
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.
XCELLENET, INC.
Date: November 24, 1997 By: /s/ Jeanne N. Bateman
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Jeanne N. Bateman
Vice President - Finance
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