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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 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PREMISYS COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3153847
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
48664 Milmont Drive
FREMONT, CALIFORNIA 94538
(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. [X]
Securities Act registration statement file number to which this form
relates: Not applicable.
Securities to be registered pursuant to
Section 12(b) of the Act: None.
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 REQUESTED:
On September 17, 1998, the Board of Directors of Premisys
Communications, Inc. (the "Company") declared a dividend of one preferred share
purchase right (a "Right") for each outstanding share of common stock, par value
$0.01 per share (the "Common Shares"), of the Company. The dividend was payable
to stockholders of record on October 5, 1998 (the "Record Date"). In addition,
one Right shall be issued with each Common Share that becomes outstanding (i)
between the Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms are defined in the
Rights Agreement discussed below) or (ii) following the Distribution Date and
prior to the Redemption Date or Final Expiration Date, pursuant to the exercise
of stock options, or under any employee plan or arrangement or upon the
exercise, conversion or exchange of other securities of the Company, which
options or securities were outstanding prior to the Distribution Date. Each
Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred Stock, par
value $0.01 per share (the "Preferred Shares"), of the Company, at a price of
$80.00 per one one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
a Rights Agreement (the "Rights Agreement") dated as of September 18, 1998
between the Company and ChaseMellon Shareholder Services L.L.C., as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement or disclosure that a person or group of affiliated or associated
persons (an "Acquiring Person"), has acquired beneficial ownership of 20% (the
"Designated Percentage") or more of the outstanding Common Shares or (ii) 10
business days (or such later date as may be determined by action of the Board of
Directors prior to such time as any person becomes an Acquiring Person),
following the announcement of an intention to make a tender offer or exchange
offer the consummation of which would result in a person or group becoming an
Acquiring Person (the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Share
certificates with a copy of a Summary of Rights attached thereto. No person
shall become an Acquiring Person if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an Acquiring
Person has become such inadvertently, and such Person as promptly as practicable
takes such action as may be necessary so that such Person would no longer be
considered an Acquiring Person.
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date, upon transfer or new
issuance of Common Shares, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such 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. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the
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Common Shares as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on September 18, 2008 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
or exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares 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 payable in Preferred Shares on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders of the
Preferred Shares of certain rights or warrants to subscribe for or purchase
Preferred Shares at a price, or securities convertible into Preferred Shares
with a conversion price, less than the then current market price of the
Preferred Shares or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
Preferred Shares) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each Right are
also subject to adjustment in the event of a stock dividend on the Common Shares
payable in Common Shares or subdivisions, consolidations or combinations of the
Common Shares occurring, in any such case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a quarterly dividend
payment of 100 times the dividend declared per Common Share. In the event of
liquidation, each Preferred Share will be entitled to a $1.00 preference, and
thereafter the holders of the Preferred Shares will be entitled to an aggregate
payment of 100 times the aggregate payment made per Common Share. Each Preferred
Share will have 100 votes, voting together with the Common Shares. Finally, in
the event of any merger, consolidation or other transaction in which Common
Shares are exchanged, each Preferred Share will be entitled to receive 100 times
the amount received per Common Share. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate the
value of one Common Share.
In the event that any person becomes an Acquiring Person, unless
the event causing the Designated Percentage threshold to be crossed and the
Person to thereby become an Acquiring Person is a merger, acquisition or other
business combination described in the next paragraph, each holder of a Right,
other than Rights beneficially owned by the Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon exercise
that number of Common Shares having a market value of two times the exercise
price of the Right on the terms and conditions set forth in the Rights
Agreement. If the Company does not have authorized but unissued Common Shares
sufficient to satisfy such obligation to issue Common
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Shares, the Company is obligated to deliver upon payment of the exercise price
of a Right an amount of cash or other securities equivalent in value to the
Common Shares issuable upon exercise of a Right.
In the event that any person or group becomes an Acquiring Person
and the Company merges into or engages in certain other business combination
transactions with an Acquiring Person or 50% or more of its consolidated assets
or earning power are sold to an Acquiring Person, each holder of a Right, other
than Rights beneficially owned by an Acquiring Person, will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right.
At any time after any person becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
Common Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one Common Share, or one one-hundredth
of a Preferred Share (or of a share of a class or series of the Company's
preferred stock having equivalent rights, preferences and privileges), per Right
(subject to adjustment).
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. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depository
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to such time as a person or group becomes an
Acquiring Person, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $0.001 per Right (the "Redemption Price").
The redemption of the Rights 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. After the period for redemption of the Rights has expired, the Board
may not amend the Rights Agreement to extend the period for redemption of the
Rights. Immediately upon any redemption of 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. Additionally, the Rights shall not be exercisable
for Common Shares upon a person becoming an Acquiring Person, until the
Company's right to redeem the Rights has terminated.
The terms of the Rights may be amended by resolution of the Board
of Directors, without the consent of the holders of the Rights, except that from
and after such time as any person or group becomes an Acquiring Person, no such
amendment may adversely affect the interests of the holders of the Rights (other
than an Acquiring Person).
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.
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Each Common Share outstanding at the close of business on October
5, 1998 received one Right, and one additional Right has been deemed to have
been delivered for each Common Share issued or transferred by the Company from
such date to the present. As long as the Rights are attached to the Common
Shares, one additional Right shall be deemed to be delivered for each Common
Share issued or transferred by the Company in the future, including but not
limited to Common Shares issuable upon exercise of options granted by the
Company. Five hundred thousand Preferred Shares are initially reserved for
issuance upon exercise of the Rights, such number to be subject to adjustment
from time to time in accordance with the Rights Agreement.
The Rights Agreement, which specifies the terms of the Rights
and which includes as exhibits thereto the form of Certificate of
Designations of Series A Junior Participating Preferred Stock, the Form of
Right Certificate and the form of Summary of Rights to Purchase Preferred
Shares, is incorporated herein by reference. The Certificate of Designations
of Series A Junior Participating Preferred Stock as filed with the Delaware
Secretary of State, which specifies the terms of the Preferred Shares, is
incorporated herein by reference. The foregoing description of the Rights and
Preferred Shares is qualified in its entirety by reference to such exhibits
incorporated herein by reference.
The Rights Agreement was amended by the First Amendment to
Rights Agreement, dated as of October 20, 1999 (the "Amendment"). The
Amendment provides an exception to the definition of "Acquiring Person" for
each of Zhone Technologies, Inc. ("Zhone") and Zhone Acquisition Corp.
("Purchaser) and their respective subsidiaries, Affiliates and Associates (as
such latter two terms are defined in the Rights Agreement) solely by virtue
of their acquisition, or their right to acquire, Common Stock of the Company
pursuant to an Agreement and Plan of Merger dated October 20, 1999 by and
among Zhone, Purchaser and the Company (the "Merger Agreement"), the Company
Option Agreement dated October 20, 1999 by and among Zhone, Purchaser and the
Company (the "Option Agreement"), the Stockholders Agreement dated October
20, 1999 by and among Zhone, Purchaser and Raymond C. Lin, Boris J. Auerbuch
and Nicholas J. Williams (the "Stockholders Agreement") or the consummation
of the transactions contemplated by the Merger Agreement, the Option
Agreement or the Stockholders Agreement. The Amendment also provides that a
"Distribution Date" or a "Shares Acquisition Date" shall not occur solely by
reason of execution of the Merger Agreement, the Option Agreement or the
Stockholders Agreement, the consummation of the Offer or the Merger (as each
term is defined in the Merger Agreement) or the consummation of any other
transaction contemplated by the Merger Agreement, the Option Agreement or the
Stockholders Agreement. Finally, the Amendment changes the definition of the
event(s) at the time of and after which a holder of Rights under the Rights
Agreement cannot exercise his, her or its Rights to the earlier of (i)
immediately prior to the Effective Time (as defined in the Merger Agreement)
of the Merger or (ii) the close of business on September 18, 2008.
The Amendment is filed as Exhibit 4.05 hereto and incorporated
herein by reference, and the foregoing description of the Amendment is qualified
in its entirety by reference to Exhibit 4.05.
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Item 2: EXHIBITS
3.01 Registrant's Amended and Restated
Certificate of Incorporation as filed with
the Secretary of State of the State of
Delaware on April 12, 1995. (Incorporated by
reference to Registrant's Registration
Statement on Form S-1 filed with the
Securities and Exchange Commission ("SEC")
on August 1, 1995 (File #33-95266).)
3.02 Certificate of Amendment of Amended and
Restated Certificate of Incorporation of
Registrant. (Incorporated by reference to
Registrant's Form 10-Q for the quarter ended
December 29, 1995 filed with the SEC on
February 12, 1996.)
3.03 Certificate of Designations specifying the
terms of the Series A Junior Participating
Preferred Stock of the Registrant, as filed
with the Delaware Secretary of State on
September 22, 1998. (Incorporated by
reference to Registrant's Form 8-A filed
with the SEC on September 22, 1998.)
3.04 Registrant's Bylaws, as amended.
(Incorporated by reference to Registrant's
Form 8-A filed with the SEC on September 22,
1998.)
4.04 Rights Agreement dated September 18, 1998
between Registrant and ChaseMellon
Shareholder Services L.L.C., as Rights
Agent, which includes as EXHIBIT A the form
of Certificate of Designations of Series A
Junior Participating Preferred Stock, as
EXHIBIT B the Form of Rights Certificate and
as EXHIBIT C the Summary of Rights to
Purchase Preferred Shares. The Rights
Certificates will not be distributed until
after the Distribution Date (as that term is
defined in the Rights Agreement).
(Incorporated by reference to Registrant's
Form 8-A filed with the SEC on September 22,
1998.)
4.05 First Amendment to Rights Agreement, dated
as of October 20, 1999, by and between
Premisys Communications, Inc. and
ChaseMellon Shareholder Services, L.L.C.
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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.
Dated: October 26, 1999
PREMISYS COMMUNICATIONS, INC.
By: /s/ JOHN J. HAGEDORN
---------------------------------
John J. Hagedorn
Senior Vice President, Finance
and Administration, Chief
Financial Officer and Secretary
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EXHIBIT INDEX
EXHIBIT
3.01 Registrant's Amended and Restated Certificate of Incorporation as filed
with the Secretary of State of the State of Delaware on April 12, 1995.
(Incorporated by reference to Registrant's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission ("SEC") on
August 1, 1995 (File #33-95266)).
3.02 Certificate of Amendment of Amended and Restated Certificate of
Incorporation of Registrant. (Incorporated by reference to Registrant's
Form 10-Q for the quarter ended December 29, 1995 filed with the SEC on
February 12, 1996.)
3.03 Certificate of Designations specifying the terms of the Series A Junior
Participating Preferred Stock of the Registrant, as filed with the
Delaware Secretary of State on September 22, 1998. (Incorporated by
reference to Registrant's Form 8-A filed with the SEC on September 22,
1998.)
3.04 Registrant's Bylaws, as amended. (Incorporated by reference to
Registrant's Form 8-A filed with the SEC on September 22, 1998.)
4.04 Rights Agreement dated September 18, 1998 between Registrant and
ChaseMellon Shareholder Services L.L.C., as Rights Agent, which
includes as EXHIBIT A the form of Certificate of Designations of Series
A Junior Participating Preferred Stock, as EXHIBIT B the Form of Rights
Certificate and as EXHIBIT C the Summary of Rights to Purchase
Preferred Shares. The Rights Certificates will not be distributed until
after the Distribution Date (as that term is defined in the Rights
Agreement). (Incorporated by reference to Registrant's Form 8-A filed
with the SEC on September 22, 1998.)
4.05 First Amendment to Rights Agreement, dated as of October 20, 1999, by
and between Premisys Communications, Inc. and ChaseMellon Shareholder
Services, L.L.C.
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EXHIBIT 4.05
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement dated October 20, 1999
("Amendment") hereby amends the Rights Agreement ("Agreement"), dated as of
September 18, 1998, between Premisys Communications, Inc., a Delaware
corporation (the "Company"), and ChaseMellon Shareholder Services, L.L.C., a New
Jersey limited liability corporation (the "Rights Agent").
Pursuant to Section 27 of the Agreement, this Amendment is being executed
by the Company and the Rights Agent for the purpose of amending the Agreement as
set forth below:
The Agreement is hereby amended as follows:
1. Section 1(a) shall be amended by inserting the following as
paragraph (C) at the end of Section 1(a):
(C) "None of Zhone Technologies, Inc. ("Parent"), Zhone
Acquisition Corp. ("Merger Sub") or their respective subsidiaries,
Affiliates or Associates shall be an Acquiring Person pursuant to
this Agreement solely by virtue of their acquisition, or their
right to acquire, beneficial ownership of shares of the Company as
a result of their execution of the Agreement and Plan of Merger
dated as of [October 20, 1999], among Parent, Merger Sub and the
Company (the "Merger Agreement"), the Company Option Agreement of
even date herewith between the Company and Parent (the "Option
Agreement") and the Stockholders Agreement of even date herewith
between Parent, Merger Sub and Messrs. Lin, Auerbuch and Williams
(the "Stockholders Agreement") or the consummation of the Offer
(as defined in the Merger Agreement) or the Merger (as defined by
the Merger Agreement) or the consummation of any other transaction
contemplated by the Merger Agreement, the Option Agreement or the
Stockholders Agreement."
2. Section 1(h) shall be amended and restated in its entirety as
follows:
""DISTRIBUTION DATE" shall have the meaning set forth in Section 3
hereof; provided however that notwithstanding any provision to the
contrary in this Agreement, a Distribution Date shall not occur
solely by reason of the execution of the Merger Agreement, the
Option Agreement or the Stockholders Agreement, the consummation
of the Offer or the Merger, or the consummation of any other
transaction contemplated by the Merger Agreement, the Option
Agreement or the Stockholders Agreement."
3. Section 1(o) shall be amended by inserting the following at the
end of Section 1(o):
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"Notwithstanding the foregoing or any provision to the contrary in
this Agreement, a Shares Acquisition Date shall not occur solely
by reason of the execution of the Merger Agreement, the Option
Agreement or the Stockholders Agreement, the consummation of the
Offer or the Merger, or the consummation of any other transaction
contemplated by the Merger Agreement, the Option Agreement or the
Stockholders Agreement."
4. Section 7(a)(i) shall be amended and restated in its entirety to
read as follows:
"(i) (x) immediately prior to the Effective Time (as defined in
the Merger Agreement) of the Merger or (y) the Close of Business
on September 18, 2008."
5. (a) This Amendment shall be deemed to be entered into under the
laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed
entirely within such State.
(b) 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.
6. As amended hereby, the Agreement shall remain in full force and
effect.
Premisys Communications, Inc.
By: /s/ John J. Hagedorn
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John J. Hagedorn, Chief Financial Officer
ChaseMellon Shareholder Services, L.L.C., as Rights Agent
By: /s/ Duane Knutson
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Duane Knutson, Assistant Vice President
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