SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 3, 1997
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SPECTRIAN CORPORATION
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(Exact Name of the Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
000-24360 77-0023003
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(Commission File Number) (I.R.S. Employer Identification No.)
350 West Java Drive, Sunnyvale, California 94089
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(Address of Principal Executive Offices) (Zip Code)
(408) 745-5400
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(Registrant's Telephone Number, Including Area Code)
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
Reincorporation in Delaware
On October 3, 1997, Spectrian Corporation, a California
corporation ("Spectrian California") completed a reincorporation (the
"Reincorporation") in Delaware through the merger of Spectrian California with
and into its wholly owned subsidiary, Spectrian Corporation, a Delaware
corporation ("Spectrian Delaware" or the "Company"). As of the effective time of
the merger, Spectrian California ceased to exist. The Reincorporation effects
only a change in the legal domicile of the Company. It will not result in any
change of the name, business, management, employees, fiscal year, assets or
liabilities, trading symbol ("SPCT") or location of any of the facilities of the
Company. Pursuant to the Agreement and Plan of Merger between the Company and
Spectrian California, each share of Spectrian California's Common Stock, no par
value, and the attached Preferred Share Purchase Right were automatically
converted into one share of the Company's Common Stock, $0.001 par value, with
an attached Preferred Share Purchase Right on the effective date of the merger.
Each stock certificate representing issued and outstanding shares of Spectrian
California's Common Stock, from the date of the merger, represents the same
number of shares of the Company's Common Stock. Each share of the Company's
Common Stock and that of its predecessor has or had, as the case may be,
attached thereto one Preferred Share Purchase Right. Prior to the occurrence of
certain events, the Preferred Share Purchase Rights will not be exercisable or
evidenced separately from the Company's Common Stock.
Description of Capital Stock
The authorized capital stock of the Company consists of 20,000,000
shares of Common Stock, $.001 par value per share, and 5,000,000 shares of
Preferred Stock, $.001 par value per share. The Certificate of Incorporation and
the Bylaws of the Company contain certain provisions that are intended to
enhance the likelihood of continuity and stability in the composition of the
Board of Directors and which may have the effect of delaying, deferring or
preventing a future takeover or change in control of the Company unless such
takeover or change in control is approved by the Board of Directors.
Common Stock
The holders of the Company's Common Stock are entitled to one vote
for each share held of record on all matters submitted to a vote of
stockholders. Subject to preferences that may be applicable to any outstanding
Preferred Stock, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. In the event of a liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior rights of shares of
Preferred Stock, if any, then outstanding. Holders of Common Stock have no
preemptive rights or conversion rights or other subscription rights. There are
no redemption or sinking fund provisions available to the Common Stock. All
outstanding shares of Common Stock are fully paid and non-
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assessable. Pursuant to the Company's Shareholder Rights Plan, each share of
Common Stock currently outstanding and all shares of Common Stock have received
one Preferred Share Purchase Right per share of Common Stock, which until such
rights become exercisable, trade with the shares of the Company's Common Stock.
At June 28, 1997, 8,357,157 shares were outstanding and held of
record by 282 stockholders. At June 28, 1997, options to purchase an aggregate
of 1,780,470 shares of Common Stock were also outstanding.
Preferred Stock
Pursuant to the Company's Certificate of Incorporation, the Board
of Directors has the authority to issue up to 5,000,000 shares of Preferred
Stock (less the 20,000 shares which have been designated Series A Participating
Preferred Stock) in one or more series and to determine the powers, preferences
and rights and the qualifications, limitations or restrictions, any or all of
which may be greater than the rights of the Common Stock, granted to or imposed
upon any wholly unissued shares of undesignated Preferred Stock and to fix the
number of shares constituting any series and the designation of such series,
without any further vote or action by the Company's stockholders. In connection
with the Company's Shareholder Rights Plan, 20,000 shares of such Preferred
Stock have been designated Series A Participating Preferred Stock. No shares of
the Series A Participating Preferred Stock have been issued or are issuable
until the occurrence of certain triggering events described below. The issuance
of Preferred Stock may have the effect of delaying, deferring or preventing a
change in control of the Company without further action by the stockholders, may
adversely affect the voting power and other rights of the holders of Common
Stock and may have the effect of decreasing the market price of the Common
Stock. At present, there are no shares of Preferred Stock outstanding.
Shareholder Rights Plan. In October 1996, the Board of Directors
adopted the Shareholder Rights Plan (the "Rights Plan"). Pursuant to the Rights
Plan, the Company declared a dividend of one Preferred Stock Purchase Right (a
"Right") for each outstanding share of Common Stock and each share of Common
Stock issued thereafter. Initially, each Right entitles the holder thereof to
purchase from the Company one share of Common Stock at an exercise price of
$126.00, subject to adjustment for stock splits, stock dividends and similar
events. The Rights are not exercisable until the occurrence of certain
triggering events.
The Rights will become exercisable only if a person or group
acquires 15% or more of the Company's Common Stock or announces a tender offer
or exchange offer that would result in its ownership of 15% or more of the
Common Stock. At the time the Board of Directors adopted the Rights Plan, a
stockholder of the Company, Kopp Investment Advisors and its affiliates
("Kopp"), held more than 15% of the Company's Common Stock. In order to avoid
triggering the Rights Plan by virtue of such pre-existing interest, the Company
and Kopp entered into an agreement and the Rights Plan was amended such that, in
the case of Kopp, the Rights will become exercisable upon Kopp acquiring or
announcing a tender offer or exercise offer that would result in its ownership
of 25% or more of the
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outstanding shares of the Company. Ten days after an acquisition or offer by a
person or group for 15% or more of the Company's Common Stock (or 25% in the
case of Kopp), each Right becomes exercisable at the Right's then current
exercise price, for shares of Common Stock of the Company (or, in certain
circumstances as determined by the Board of Directors, a combination of cash,
property, Common Stock or other securities) having a value of twice the Right's
exercise price. Alternatively, if the Company is involved in a merger or other
business combination transaction with another person ten or more days after such
acquisition or offer, each Right becomes exercisable, at the Right's then
current exercise price, for shares of common stock of such other person having a
value of twice the Right's exercise price. The Rights are redeemable up to ten
days following the announcement of such acquisition or offer, subject to
extension by the Board of Directors, at a price of $0.01 per Right. The Rights
Plan expires in October 2006 unless the Rights are earlier redeemed by the
Company.
Pursuant to the Rights Plan, 20,000 shares of Preferred Stock have
been designated Series A Participating Preferred, and reserved for issuance
under the Rights Plan. The Series A Participating Preferred purchasable upon
exercise of the Rights will be nonredeemable and junior to any other series of
Preferred Stock the Company may issue (unless otherwise provided in the terms of
such stock). Each share of Series A Participating Preferred will have a
preferential cumulative quarterly dividend in an amount equal to 1,000 times the
dividend declared on each share of Common Stock and, in the event of
liquidation, the holders of Series A Participating Preferred will receive a
preferred liquidation payment equal to $126,000 per share, plus accrued and
unpaid dividends (the "Series A Liquidation Preference"). Following payment of
the Series A Liquidation Preference, and after the holders of shares of Common
Stock shall have received an amount per share equal to the quotient obtained by
dividing the Series A Liquidation Preference by 1,000, the holders of Series A
Participating Preferred and holders of Common Stock shall share ratably and
proportionately the remaining assets to be distributed in liquidation. Each
share of Series A Participating Preferred Stock will have 1,000 votes, voting
together with the shares of Common Stock as a single class. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged for or changed into other securities, cash and/or other property, each
share of Series A Participating Preferred will be entitled to receive 1,000
times the amount and type of consideration received per share of Common Stock.
The Rights Plan is intended to protect the Company's stockholders
in the event of an unsolicited offer to acquire, or the acquisition of, 15% or
more (or, in the case of Kopp, 25% or more) of the Common Stock of the Company.
The Rights are not intended to prevent a takeover of the Company and will not
interfere with any tender offer or business combination approved by the Board of
Directors. The Rights encourage persons seeking control of the Company to
initiate such an acquisition or offer to acquire through arm's-length
negotiations with the Board of Directors.
Certain Provisions of the Certificate of Incorporation and Bylaws
The Company's Certificate of Incorporation provides for cumulative
voting for the election of directors. Section 141 of the Delaware General
Corporation Law provides that a director elected by cumulative voting may not be
removed without cause if the number of votes cast against removal would be
sufficient to elect such director under cumulative voting. The Company's Bylaws
define "cause" for
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the purpose of these provisions to mean (i) continued willful failure to perform
the obligations of a director, (ii) gross negligence by the director, (iii)
engaging in transactions that defraud the Company, (iv) fraud or intentional
misrepresentation including falsifying use of funds and intentional
misstatements made in financial statements, books, records or reports to
stockholders or governmental agencies, (v) material violation of any agreement
between the director and the Company, (vi) knowingly causing the Company to
commit violations of applicable law (including by failure to act), (vii) acts of
moral turpitude or (viii) conviction of a felony.
The Company's Bylaws establish an advance notice procedure for
stockholder proposals to be brought before an annual meeting of stockholders of
the Company, including proposed nominations of persons for election to the Board
of Directors. Stockholders at an annual meeting may only consider proposals or
nominations specified in the notice of meeting or brought before the meeting by
or at the direction of the Board or by a stockholder who was a stockholder of
record on the record date for the meeting, who is entitled to vote at the
meeting and who has given to the Company's Secretary timely written notice, in
proper form, of the stockholder's intention to bring that business before the
meeting. Although the Bylaws do not give the Board of Directors the power to
approve or disapprove stockholder nominations of candidates or proposals
regarding other business to be conducted at a special or annual meeting of the
stockholders, the Bylaws may have the effect of precluding the conduct of
certain business at a meeting if the proper procedures are not followed or may
discourage or defer a potential acquirer from conducting a solicitation of
proxies to elect its own slate of directors or otherwise attempting to obtain
control of the Company.
Certain Provisions of Delaware Law
The Company is subject to Section 203 of the Delaware General
Corporation Law ("Section 203"). In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in various "business combination"
transactions with any "interested stockholder" for a period of three years after
the date of the transaction which the person became an "interested stockholder,"
unless (i) prior to such date, the Board of Directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an interested stockholder, (ii) upon consummation of
the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock
of the corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding those shares owned
by (a) persons who are directors and also officers and (b) employee stock plans
in which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer, or (iii) on or subsequent to such date the business combination is
approved by the board of directors and authorized at an annual or special
meeting of stockholders by the affirmative vote of at least 66 and 2/3% of the
outstanding voting stock which is not owned by the interested stockholder.
Section 203 defines business combination to include: (i) any merger or
consolidation involving the corporation and the interested stockholder; (ii) any
sale, transfer, pledge or other disposition involving the interested stockholder
of 10% or more of the assets of the corporation; (iii) subject to certain
exceptions, any transaction that results in the issuance or transfer by the
corporation of any stock of the corporation to the interested
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stockholder; (iv) any transaction involving the corporation that has the effect
of increasing the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder; or (v) the receipt
by the interested stockholder of the benefit of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the corporation. In
general, Section 203 defines an interested stockholder as any entity or person
who, together with affiliates and associates, beneficially owns (or within three
years, did beneficially own) 15% or more of a corporation's voting stock. The
statute could prohibit or delay mergers or other takeover or change in control
attempts with respect to the Company and, accordingly, may discourage attempts
to acquire the Company.
Although a company reincorporating in Delaware may choose not to
be governed by Section 203, most corporations do not opt out of Section 203.
Therefore, the Board of Directors of the Company did not propose opting out of
Section 203 to the shareholders in its Proxy Statement for the 1997 Annual
Meeting of Shareholders wherein the reincorporation was proposed. However, in
the course of soliciting proxies for the 1997 Annual Meeting of Shareholders,
certain of the Company's institutional shareholders expressed concern that the
Board did not recommend opting out of Section 203. The Company believes that the
best way to address these concerns is to put the matter before its stockholders
as a proposed amendment to the Company's bylaws at its 1998 Annual Meeting of
Stockholders.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits
Exhibit
Number Description
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2.1 Agreement and Plan of Merger Spectrian
Corporation, a Delaware corporation, and
Spectrian Corporation, a California
corporation, dated as of October 3, 1997.
3.1 Certificate of Incorporation of the Company.
3.2 Bylaws of the Company.
10.32 Form of Indemnification Agreement executed
by the Company and each of its officers and
directors.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: October 10, 1997
SPECTRIAN CORPORATION
By: /s/ Bruce R. Wright
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Bruce R. Wright
Executive Vice President, Finance and
Administration, Chief Financial Officer
and Secretary
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SPECTRIAN CORPORATION
FORM 8-K
INDEX TO EXHIBITS
Exhibit Sequential
Number Exhibit Title Page No.
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2.1 Agreement and Plan of Merger between 11
Spectrian Corporation, a Delaware
corporation, and Spectrian Corporation,
a California corporation, dated as of
October 3, 1997.
3.1 Certificate of Incorporation of the 18
Company.
3.2 Bylaws of the Company. 23
10.32 Form of Indemnification Agreement 42
executed by the Company and
each of its officers and directors.
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