-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AyZQQOfs5ocNwZ6Ehz105Dff9kywN0SyAkMkyROUdPfH3KF5PZk5J4ORygpCNo1H cDzWq2uPKYT3Tmppa3jxgw== 0000891618-99-001575.txt : 19990416 0000891618-99-001575.hdr.sgml : 19990416 ACCESSION NUMBER: 0000891618-99-001575 CONFORMED SUBMISSION TYPE: 8-A12G/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990415 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SUN MICROSYSTEMS INC CENTRAL INDEX KEY: 0000709519 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 942805249 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-A12G/A SEC ACT: SEC FILE NUMBER: 333-72413 FILM NUMBER: 99594512 BUSINESS ADDRESS: STREET 1: 901 SAN ANTONIO RD CITY: PALO ALTO STATE: CA ZIP: 94303 BUSINESS PHONE: 6509601300 MAIL ADDRESS: STREET 1: 901 SAN ANTONIO ROAD CITY: PALO ALTO STATE: CA ZIP: 94303 8-A12G/A 1 AMENDMENT #7 TO FORM 8-A/A 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM 8-A/A AMENDMENT NO. 7 FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 -------------------------- SUN MICROSYSTEMS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 94-2805249 (State of Incorporation) (I.R.S. Employer Identification Number) 901 SAN ANTONIO ROAD PALO ALTO, CALIFORNIA 94303 (Address of principal executive offices) (Zip Code) ------------------------------------- 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), check the following box. [X] Securities to be registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on to be so registered which each class is to be registered - ------------------- ------------------------------------ None None Securities to be registered pursuant to Section 12(g) of the Act: SHARE PURCHASE RIGHTS (Title of Class) ================================================================================ 2 ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED. On April 26, 1989, the Board of Directors of Sun Microsystems, Inc. (the "Company") declared a dividend of one share purchase right (a "Right") for each outstanding share of Common Stock, $0.00067 par value (the "Common Shares"), of the Company. The dividend was paid on May 26, 1989 (the "Record Date") to stockholders of record as of the close of business on that date, and Rights have been issued in connection with all Common Shares issued since that date. The description and terms of the Rights are set forth in a Second Amended and Restated Shares Rights Agreement dated as of February 11, 1998 (the "Rights Agreement") as amended April 14, 1999 (the "Amendment") between the Company and BankBoston, N.A., as Rights Agent (collectively, the "Amended Rights Agreement"). After the Distribution Date (defined below), each Right will entitle the registered holder to purchase from the Company one one thousandth of a share of Series A Participating Preferred Stock (as may be adjusted pursuant to the terms set forth in the Amended Rights Agreement) at a price of $150.00 (the "Purchase Price"), which has been adjusted to reflect the Company's two-for-one stock split paid to stockholders in the form of a stock dividend on April 8, 1999. The Purchase Price is subject to adjustment from time to time as a result of certain events set forth in the Amended Rights Agreement (including the Company's recent stock split). The following is a general description only and is subject to the detailed terms and conditions of the Amended Rights Agreement. A copy of the Rights Agreement, including the form of Rights Certificate and a Summary of Terms and the Amendment are attached or incorporated hereto as Exhibits 2.1 and 2.3 to this Registration Statement. RIGHTS EVIDENCED BY COMMON SHARE CERTIFICATES The Rights will not be exercisable until the Distribution Date. Certificates for the Rights ("Rights Certificates") have not been, and until after the Distribution Date will not be, sent to stockholders. Until after the Distribution Date, Rights will remain attached to and trade only together with the Common Shares. Accordingly, Common Share certificates outstanding on the Record Date evidence the Rights related thereto, and Common Share certificates issued after the Record Date contain a notation incorporating the Amended 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 or after the Record Date, even without notation or a copy of the Summary of Terms being attached thereto, also constitutes the transfer of the Rights associated with the Common Shares represented by such certificates. DISTRIBUTION DATE 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 (or such later date as may be determined by the Board of Directors, unless a majority of the Board of Directors has been replaced by stockholder action by written consent) following a public announcement 3 (which for purposes of this definition shall include, without limitation, a report filed pursuant to Section 13(d) under the Exchange Act, except as set forth below) by the Company or an Acquiring Person that an Acquiring Person has become such, provided that, if such person is determined not to have become an Acquiring Person pursuant to the definition of Acquiring Person below, then no acquisition shall be deemed to have occurred or (ii) 10 business days (or such later date as may be determined by the Board of Directors, unless a majority of the Board of Directors has been replaced by stockholder action by written consent) 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 or group of 10% or more of the outstanding Common Shares. The earlier of such dates is referred to as the "Distribution Date." "Acquiring Person" shall mean any person who or which, together with all affiliates and associates of such person, shall be the beneficial owner of 10% or more of the Common Shares then outstanding, but shall not include the Company. No person shall become an "Acquiring Person" if as the result of an acquisition of Common Shares by the Company which, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such person to 10% or more of the Common Shares of the Company then outstanding; provided, however, that if a person shall become the beneficial owner of 10% or more of the Common Shares of the Company then outstanding by reason of share purchases by the Company and shall, after such purchases by the Company, become the beneficial owner of any additional Common Shares of the Company (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares in Common Shares or pursuant to a split or subdivision of the outstanding Common Shares), then such person shall be deemed to be an "Acquiring Person" unless upon becoming the beneficial owner of such additional Common Shares of the Company such person does not beneficially own 10% or more of the Common Shares of the Company then outstanding. Notwithstanding the foregoing, no person shall become an "Acquiring Person" if (i) the Company's Board of Directors determines that such person would have become an "Acquiring Person" inadvertently but for the operation of this sentence and such person divests a sufficient number of shares so that such person would no longer be an "Acquiring Person" promptly and (ii) such person was the beneficial owner of 10% or more of the Common shares outstanding as of February 11, 1998, unless and until such Person becomes the beneficial owner of additional Common Shares (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common Shares in Common Shares or pursuant to a split or subdivision of the outstanding Common Shares), unless, upon becoming the beneficial owner of such additional Common Shares, such person is not then the beneficial owner of 10% or more of the Common Shares then outstanding. In addition, notwithstanding the foregoing, a person or group of affiliated or associated persons who (i) acquires or obtains the right to acquire beneficial ownership of 10% or more but less than 20% of the Common Shares then outstanding, and (ii) files a Schedule 13G rather than a Schedule 13D in accordance with Section 13(d) or Rule 13(d)(1) of the Exchange Act with respect to such Common Shares shall not be deemed to have acquired 4 "beneficial ownership" of such Common Shares for purposes of the Amended Rights Agreement and therefore, will not be deemed to be an "Acquiring Person" under the Amended Rights Agreement, but only for so long as such person or group beneficially owns less than 20% of the then outstanding Common Shares or is not otherwise required to file a Schedule 13D under the Exchange Act, as may be determined by the Board of Directors. ISSUANCE OF RIGHTS CERTIFICATES; EXPIRATION OF RIGHTS 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. Unless otherwise specified by the Board of Directors at the time of issuance, all Common Shares issued after the Record Date but 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 securities issued after adoption of the original Common Shares Rights Agreement (dated as of May 15, 1989) or (ii) pursuant to the exercise of stock options or under employee benefit plans or pursuant to the conversion of the Company's outstanding convertible subordinated debentures, or (iii) in any other case, if deemed necessary or appropriate by the Board of Directors, unless such issuance would result in (or create a risk of) such options, plans or debentures failing to qualify for otherwise available special tax treatment or appropriate adjustment shall otherwise have been made in lieu of the issuance thereof. Except as otherwise determined by the Board of Directors, no other Common Shares issued after the Distribution Date will be issued with Rights. The Rights will expire on the earliest of (i) February 11, 2008 (the "Final Expiration Date") or (ii) redemption or exchange of the Rights as described below. INITIAL EXERCISE OF THE RIGHTS 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 $150.00 per Right, one one-thousandth of a share of Series A Participating Preferred Stock. PROTECTION AGAINST CERTAIN ACQUISITIONS NOT NEGOTIATED WITH THE BOARD OF DIRECTORS; RIGHT TO BUY COMMON SHARES AT HALF PRICE Unless the Rights are earlier redeemed or exchanged, in the event that a person becomes an "Acquiring Person" then 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, Common Shares having a value equal to two times the Purchase Price. Rights are not exercisable following the occurrence of the event set forth above until the Distribution Date. In the event that the Company does not have sufficient Common Shares available for all Rights to be exercised, or the Board decides that such action is necessary and not contrary 5 to the interests of Rights holders, the Company may instead substitute cash, assets or other securities for the Common Shares into which the Rights would have been exchangeable under this provision or as described below. PROTECTION AGAINST CERTAIN UNFAIR TWO-STEP OR COERCIVE TRANSACTIONS; RIGHT TO BUY ACQUIRING COMPANY STOCK AT HALF PRICE Similarly, unless the Rights are earlier redeemed or exchanged, in the event that, after the Distribution Date, (i) the Company is acquired in a merger or other business combination transaction in which the Company is not the surviving corporation or in which the Company's outstanding Common Shares are changed or exchanged for stock or assets of another person or (ii) 50% or more of the Company's consolidated assets or earning power is sold (other than in transactions in the ordinary course of business), 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 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. EXCHANGE PROVISION At any time after the acquisition by an Acquiring Person of beneficial ownership of 10% 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 (subject to adjustment). ADJUSTMENTS TO PREVENT DILUTION The Purchase Price payable, the number of Rights and the number of Series A Participating Preferred Stock or Common Shares or other securities or property issuable upon exercise of the Rights are subject to adjustment from time to time to prevent dilution as set forth in the Amended 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. REDEMPTION At any time on or prior to the close of business on the earlier of (i) ten days (or such later date as may be determined by the Board of Directors) after the accumulation of beneficial ownership of 10% or more of the Company's shares by a single acquiror or group or (ii) the Final Expiration Date of the Rights, the Company, may redeem the Rights in whole, but not in part, at a price of $.0l per Right ("Redemption Price"). Immediately upon the action of the Board of Directors ordering redemption of the Rights, the right to exercise the 6 Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price. NO STOCKHOLDERS' RIGHTS PRIOR TO EXERCISE 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 AMENDED RIGHTS AGREEMENT The provisions of the Amended 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, the provisions of the Amended Rights Agreement may be amended by the Board in order to cure any ambiguity, defect or inconsistency, to make changes which do not adversely affect the interests of holders of Rights (excluding the interests of any Acquiring Person), or to shorten or lengthen any time period under the Amended Rights Agreement; provided, however, that no amendment to adjust the time period governing redemption shall be made at such time as the Rights are not redeemable. CERTAIN ANTI-TAKEOVER EFFECTS 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 a corporation's Board of Directors and its stockholders of any real opportunity to determine the destiny of the corporation. 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 10% 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 can 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 on appropriate terms and will not do so. Subject to certain exceptions discussed above, the Rights may be redeemed by the Company at $.01 per Right within ten days (or such later date as may be determined by the Board of Directors) after the accumulation of beneficial ownership of 10% 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 7 Company or interfere with its business plans. The issuance of the Rights has no dilutive effect, will not affect reported earnings per share, should not be taxable to the Company or to its stockholders 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 an acquisition more difficult or discouraging an acquisition of the Company in a manner 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. 1. Form of rights certificate (see Exhibit B of Exhibit 2.1 below). 2.1. *Second Amended and Restated Shares Rights Agreement dated as of February 11, 1998. 2.2. *Certificate of Designations of Registrant. 2.3. Amendment to Second Amended and Restated Shares Rights Agreement dated as of April 14, 1999. 2.4. Amended Certificate of Designations of Registrant. * Incorporated by reference to Amendment No. 6 to Registration Statement on Form 8-A/A filed with the Securities and Exchange Commission on February 13, 1998. 8 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. April 14, 1999 SUN MICROSYSTEMS, INC. By: /s/ MICHAEL H. MORRIS ----------------------------------- Michael H. Morris, Vice President, General Counsel and Secretary 9 EXHIBIT INDEX
EXHIBIT NUMBER - ------- ------ 1. Form of rights certificate (see Exhibit B of Exhibit 2.1 below). 2.1. *Second Amended and Restated Shares Rights Agreement dated as of February 11, 1998. 2.2. *Certificate of Designations of Registrant. 2.3. Amendment to Second Amended and Restated Shares Rights Agreement dated as of April 14, 1999. 2.4. Amended Certificate of Designations of Registrant. * Incorporated by reference to Amendment No. 6 to Registration Statement on Form 8-A/A filed with the Securities and Exchange Commission on February 13, 1998.
EX-2.3 2 SECOND AMENDED & RESTATED SHARES RIGHTS AGREEMENT 1 EXHIBIT 2.3 AMENDMENT TO SECOND AMENDED AND RESTATED SHARES RIGHTS AGREEMENT This amendment to the Second Amended and Restated Shares Rights Agreement (the "Amendment"), dated as of April 14, 1999, is entered into by and between Sun Microsystems, Inc., a Delaware corporation (the "Company"), and BankBoston, N.A. (the "Rights Agent"). WHEREAS, the Company and the Rights Agent are parties to that certain Second Amended and Restated Shares Rights Agreement dated as of February 11, 1998 (the "Rights Plan"); WHEREAS, the Rights Plan contains terms restricting the ability of the Company's Board of Directors to amend the Rights Plan or redeem the Rights issued thereunder under certain circumstances; WHEREAS, the Board of Directors of the Company has determined that it is in the best interests of the Company and its stockholders to amend the Rights Plan to remove such terms as set forth herein and the Rights Agent has agreed to the Amendment of Rights Plan as set forth herein; and WHEREAS, pursuant to Section 27 of the Rights Plan, the Rights Plan may be amended as set forth herein without approval of the holders of the Rights (as defined in the Rights Plan). NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth, the Company and the Rights Agent agree as follows: 1. Amendment of Rights Plan. Effective as of the date hereof, (a) Each of Section 1(k) (definition of "Interested Person") and Section 1(y) (definition of "Transaction") is deleted from the Rights Plan in its entirety. (b) Each of Section 23(c) (concerning redemption) and the last sentence of Section 27 (concerning amendment) is deleted from the Rights Plan in its entirety. 2. Rights Plan in Full Force and Effect. Except as amended hereby, the Rights Plan 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 State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to 2 contracts to be made and performed entirely within such 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. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written. "COMPANY" SUN MICROSYSTEMS, INC. By: /s/ MICHAEL H. MORRIS ---------------------------------------- Name: Michael H. Morris -------------------------------------- Title: Vice President, General Counsel and Secretary ------------------------------------- "RIGHTS AGENT" BANKBOSTON, N.A. By: /s/ BRITTA PUSCHENDORF ---------------------------------------- Name: Britta Puschendorf -------------------------------------- Title: Senior Account Manager ------------------------------------- EX-2.4 3 AMENDED CERTIFICATE OF DESIGNATIONS OF REGISTRANT 1 EXHIBIT 2.4 AMENDED CERTIFICATE OF DESIGNATIONS OF RIGHTS, PREFERENCES AND PRIVILEGES OF SERIES A PARTICIPATING PREFERRED STOCK OF SUN MICROSYSTEMS, INC. Michael E. Lehman and Michael H. Morris, certify that: 1. They are the Vice President, Corporate Resources and Chief Financial Officer and Vice President, General Counsel and Secretary, respectively, of Sun Microsystems, Inc., a Delaware corporation (the "Corporation"). 2. Section I. of Item 2. of the Certificate of Designations of Rights, Preferences and Privileges of Series A Participating Preferred Stock ("Certificate") now reads: "Section I. Designation and Amount. The shares of such series shall be designated as "SERIES A PARTICIPATING PREFERRED STOCK." The Series A Participating Preferred Stock shall have a par value of $0.001 per share, and the number of shares constituting such series shall be 1,000,000. is amended to read as follows: Section I. Designation and Amount. The shares of such series shall be designated as "SERIES A PARTICIPATING PREFERRED STOCK." The Series A Participating Preferred Stock shall have a par value of $0.001 per share, and the number of shares constituting such series shall be 3,000,000." 3. Pursuant to Section 151 of the Delaware Corporations Code, the foregoing Amended Certificate has been duly approved by the Board of Directors. We further declare under penalty of perjury under the laws of the State of Delaware that the matters set forth in the foregoing Certificate of Amendment are true and correct of our own knowledge. Executed at Palo Alto, California on March 17, 1999. /s/ MICHAEL E. LEHMAN --------------------------------------------- Michael E. Lehman Vice President, Corporate Resources and Chief Financial Officer /s/ MICHAEL H. MORRIS --------------------------------------------- Michael H. Morris Vice President, General Counsel and Secretary -----END PRIVACY-ENHANCED MESSAGE-----