FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ProBusiness Services, Inc.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 94-2976066
- --------------------------------------------------------------------------------
(State of incorporation or organization (IRS Employer I.D. No.)
4125 Hopyard Rd., Pleasanton, CA 94588
- --------------------------------------------------------------------------------
(Address of principal executive offices)
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), 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), check the following box. [X]
Securities Act registration statement file number to which this form relates (if
applicable): Not applicable.
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)
This Amendment No. 1 on Form 8-A is being filed by ProBusiness Services,
Inc., to amend and restate Item 1 and the exhibit filed under Item 2 of the Form
8-A originally filed on August 17, 2001.
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
ProBusiness Services, Inc. (the "Company") and Wells Fargo Bank, MN N.A.
(the "Rights Agent") are parties to a Preferred Stock Rights Agreement, entered
into as of August 8, 2001 (the "Prior Agreement"). Pursuant to the Prior
Agreement, the Company's Board of Directors declared a dividend of one right (a
"Right") to purchase one one-thousandth share of the Company's Series A
Participating Preferred Stock ("Series A Preferred") for each outstanding share
of Common Stock, par value $0.001 per share ("Common Shares"), of the Company.
The dividend was payable on August 30, 2001 (the "Record Date"), to stockholders
of record as of the close of business on that date. Each Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Preferred at an exercise price of $170.00 (the "Purchase Price"),
subject to adjustment.
On December 19, 2001, pursuant to Section 27 of the Prior Agreement, the
Company's Board of Directors agreed to restate the dividend that it had declared
under the Prior Agreement in an Amended and Restated Preferred Stock Rights
Agreement dated December 19, 2001 (the "Rights Agreement"). Under the Rights
Agreement, the Company's Board of Directors amended the Prior Agreement to amend
the triggering event threshold applicable to General Atlantic Partners, LLC and
its affiliates and associates (the "GAP Entities") to more than 26%.
The following summary of the principal terms of the Rights Agreement is
a general description only and is subject to the detailed terms and conditions
of the Rights Agreement. A copy of the Rights Agreement is attached as Exhibit
4.1 to this Registration Statement and is incorporated herein by reference.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date (defined
below). Certificates for the Rights ("Rights Certificates") will not be sent to
stockholders and the Rights will attach to and trade only together with the
Common Shares. Accordingly, Common Share certificates outstanding on the Record
Date will evidence the Rights related thereto, and Common Share certificates
issued after the Record Date will contain a notation incorporating the 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 the Record Date, even without notation or a
copy of the Summary of Rights being attached thereto, also will constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate.
Distribution Date
The Rights will be separate from the Common Shares, Rights Certificates
will be issued and the Rights will become exercisable upon the earlier of (a)
the tenth day (or such later date as may be determined by the Company's Board of
Directors) after a person or group of affiliated or associated
persons ("Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the Common Shares then outstanding, or
(b) the tenth business day (or such later date as may be determined by the
Company's Board of Directors) after a person or group announces a tender or
exchange offer, the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the Company's then outstanding
Common Shares. However, with respect to shares of the Company's Common Stock
held or acquired by the GAP Entities, no Distribution Date will occur until such
time as the GAP Entities acquire more than 26% of the Company's Common Stock or
announce a tender offer to acquire more than 26% of the Company's Common Stock
(the "Limitations"). The earlier of such dates is referred to as the
"Distribution Date."
Issuance of Rights Certificates; Expiration of Rights
As soon as practicable following the Distribution Date, a Rights
Certificate 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 Certificate
alone will evidence the Rights from and after the Distribution Date. The Rights
will expire on the earliest of (i) August 30, 2011, (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 the Purchase Price, one one-thousandth share of the
Series A Preferred. In the event that the Company does not have sufficient
Series A Preferred available for all Rights to be exercised, or the Board
decides that such action is necessary and not contrary to the interests of
Rights holders, the Company may instead substitute cash, assets or other
securities for the Series A Preferred for which the Rights would have been
exercisable under this provision or as described below.
Right to Buy Company Common Shares
Unless the Rights are earlier redeemed, in the event that an Acquiring
Person obtains 15% or more of the Company's then outstanding Common Shares (or
with respect to the GAP Entities, the GAP Entities are not in compliance with
the Limitations), 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 an event as described
above until such time as the Rights are no longer redeemable by the Company as
set forth below.
Right to Buy Acquiring Company Stock
Similarly, unless the Rights are earlier redeemed, in the event that,
after an Acquiring Person obtains 15% or more of the Company's then outstanding
Common Shares (or with respect to the GAP Entities, the GAP Entities are not in
compliance with the Limitations), (i) the Company is acquired in a merger or
other business combination transaction, or (ii) 50% or more of the
-2-
Company's consolidated assets or earning power are sold (other than in
transactions in the ordinary course of business), proper provision must 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 an Acquiring Person obtains 15% or more of the
Company's then outstanding Common Shares (or with respect to the GAP Entities,
the GAP Entities are not in compliance with the Limitations) 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.
Redemption
At any time on or prior to the Close of Business on the earlier of (i)
the fifth day following the attainment of 15% or more of the Company's then
outstanding Common Shares by an Acquiring Person (or with respect to the GAP
Entities, the GAP Entities are not in compliance with the Limitations) (or such
later date as may be determined by action of the Company's Board of Directors
and publicly announced by the Company), or (ii) the Final Expiration Date, the
Company may redeem the Rights in whole, but not in part, at a price of $0.001
per Right.
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights, and the number of
Series A Preferred or Common Shares or other securities or property issuable
upon exercise of the Rights are subject to adjustment from time to time in
connection with the dilutive issuances by the Company as set forth in the 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.
Cash Paid Instead of Issuing Fractional Shares
No fractional Common Shares will be issued upon exercise of a Right and,
in lieu thereof, an adjustment in cash will be made based on the market price of
the Common Shares on the last trading date prior to the date of exercise.
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.
-3-
Amendment of Rights Agreement
The terms of the Rights and the Rights Agreement may be amended in any
respect without the consent of the Rights holders on or prior to the
Distribution Date; thereafter, the terms of the Rights and the Rights Agreement
may be amended without the consent of the Rights holders in order to cure any
ambiguities or to make changes which do not adversely affect the interests of
Rights holders (other than the Acquiring Person).
Rights and Preferences of the Series A Preferred
Each one one-thousandth of a share of Series A Preferred has rights and
preferences substantially equivalent to those of one Common Share.
No Voting Rights
Rights will not have any voting rights.
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 acquirer 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 the Company's Board of Directors and its
stockholders of any real opportunity to determine the destiny of the Company.
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 15% 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 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 and
will not do so. Subject to the restrictions described above, the Rights may be
redeemed by the Company at $0.001 per Right at any time prior to the
Distribution Date. Accordingly, the Rights should not interfere with any merger
or business combination approved by the Board of Directors.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company 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.
Issuance of the Rights does not in any way weaken the financial strength
of the Company or interfere with its business plans. The issuance of the Rights
themselves 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.
-4-
ITEM 2. EXHIBITS
3.1 Amended and Restated Certificate of Incorporation(1)
3.2 Bylaws, as amended(2)
4.1 Amended and Restated Preferred Stock Rights Agreement, dated
as of December 19, 2001, between ProBusiness Services, Inc.
and Wells Fargo Bank, MN N.A., including the Certificate of
Designation, the form of Rights Certificate and the Summary
of Rights attached thereto as Exhibits A, B, and C,
respectively.
- -------------
(1) Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (file no. 333-37129) filed with the Securities and
Exchange Commission on October 3, 1997.
(2) Incorporated by reference to Exhibit 3.3 to the Company's Registration
Statement on Form S-1, as amended (file no. 333-23189), declared effective
on September 18, 1997.
-5-
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.
Date: January 4, 2002 ProBusiness Services, Inc.
By: /s/ Thomas H. Sinton
--------------------------------
Thomas H. Sinton
Chairman of the Board, President
and Chief Executive Officer
-6-
EXHIBIT INDEX
EXHIBITS
- --------
3.1 Amended and Restated Certificate of Incorporation(1)
3.2 Bylaws, as amended(2)
4.1 Amended and Restated Preferred Stock Rights Agreement, dated as of
December 19, 2001, between ProBusiness Services, Inc. and Wells Fargo
Bank, MN N.A., including the Certificate of Designation, the form of
Rights Certificate and the Summary of Rights attached thereto as
Exhibits A, B, and C, respectively.
- -------------
(1) Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8 (file no. 333-37129) filed with the Securities and
Exchange Commission on October 3, 1997.
(2) Incorporated by reference to Exhibit 3.3 to the Company's Registration
Statement on Form S-1, as amended (file no. 333-23189), declared effective
on September 18, 1997