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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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NEW ERA OF NETWORKS, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 84-1234845
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(State of incorporation or organization) (IRS Employer Identification No.)
7400 East Orchard Road, Suite 230
Englewood, Colorado 80111
(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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 None
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED SHARE PURCHASE RIGHTS
(Title of Class)
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On August 5, 1998, pursuant to a Preferred Shares Rights
Agreement (the "Rights Agreement") between New Era of Networks, Inc. (the
"Company") and BankBoston, N.A., as Rights Agent (the "Rights Agent"), 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 Preferred Stock
("Series A Preferred") for each outstanding share of Common Stock, par value of
$0.0001 per share ("Common Shares"), of the Company. The dividend is payable
on August 17, 1998 (the "Record Date") to stockholders of record as of the
close of business on that day. 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 $225.00 (the "Purchase Price"), subject to adjustment.
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 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, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
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)
fifteen days following the first date a public announcement by the Company or
an Acquiring Person (as defined below) that an Acquiring Person has become such
(the "Shares Acquisition Date") and (ii) fifteen days (or such later date as
may be determined by the Board of Directors) following the commencement of, or
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 is referred to as the "Distribution Date."
A person or group of affiliated or associated persons that beneficially owns,
or has the right to acquire beneficial ownership of, 15% or more of the
outstanding Common Shares is referred to as an "Acquiring Person"; provided,
however, that with respect to George F. (Rick) Adam, Jr. ("Mr. Adam"), the
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applicable percentage shall be 25% and with respect to other stockholders of
record owning 10% or more of the outstanding Common Shares on the Record Date,
the applicable percentage shall be 20%.
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. The Rights will expire on the earliest of (i) August 5, 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 the Purchase Price, one one-thousandth of a share
of the Series A Preferred.
Right to Buy Company Common Shares
Unless the Rights are earlier redeemed, in the event that a person
becomes an Acquiring Person (a "Triggering Event"), then 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 or any affiliate
of 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. In the event that the Company does not have
sufficient Common Shares available for all Rights to be exercised, or the Board
of Directors of the Company 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 Common Shares for which the Rights
would have been exercisable.
Right to Buy Acquiring Company Stock
Similarly, unless the Rights are earlier redeemed, in the event that,
after a Triggering Event, (i) the Company is acquired in a merger or other
business combination transaction, or (ii) 50% or more of the 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 or any affiliate of 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.
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Exchange Provision
At any time after a Triggering Event and prior to the acquisition by
any person or entity of beneficial ownership 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 Shares Acquisition Date and (ii) the Final Expiration Date of the Rights,
the Company may redeem the Rights in whole, but not in part, at a price of
$0.005 per Right.
Notwithstanding the foregoing, in the event that a majority of the
Board of Directors of the Company is elected by stockholder action by written
consent or at a special meeting of stockholders (a meeting other than a
regularly scheduled annual meeting) then until the earlier to occur of (i) the
180th day following the effectiveness of such election or (ii) the next regular
annual meeting of stockholders of the Company following the effectiveness of
such election (including any postponement or adjournment thereof), the Rights
shall not be redeemed if such redemption is reasonably likely to have the
purpose or effect of facilitating a Transaction (defined as merger,
consolidation or sale of assets or any acquisition of Common Shares which would
result in a person becoming an Acquiring Person) with an Interested Person
(defined as person or group who (i) is or will become an Acquiring Person if
such Transaction were to be consummated, and (ii) is, or directly or indirectly
proposed, nominated or financially supported, a director of the Company in
office at the time of consideration of such Transaction who was elected by
written consent or at a special meeting of stockholders).
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 portion less than integral multiples of one Common Share
or one one-thousandth of a share of Series A Preferred 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 security to be so issued on the last trading
date prior to the date of exercise.
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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 Rights Agreement
The provisions of the Rights Agreement may be supplemented or amended
by the Board of Directors of the Company in any manner prior to the
Distribution Date. After such date, the provisions of the Rights Agreement may
be amended by the Board of Directors 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 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.
In the event that a majority of the Board of Directors of the Company
is elected by stockholder action by written consent, then until the earlier to
occur of (i) the 180th day following the effectiveness of such election or (ii)
the next regular annual meeting of stockholders of the Company following the
effectiveness of such election (including any postponement or adjournment
thereof), the Rights Agreement shall not be supplemented or amended in any
manner reasonably likely to have the purpose or effect of facilitating a
Transaction with an Interested Person.
Rights and Preferences of the Series A Preferred
Series A Preferred purchasable upon exercise of the Rights will not be
redeemable. Each share of Series A Preferred will be entitled to an aggregate
dividend of 1,000 times the dividend declared per Common Share. In the event
of liquidation, the holders of the Series A Preferred will be entitled to 1,000
times the amount paid per Common Share plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment. Each share of Series A Preferred will have 1,000 votes,
voting together with the Common Shares. These rights are protected by
customary anti-dilution provisions.
Because of the nature of the dividend, liquidation and voting rights
of the shares of Series A Preferred, the value of the one one-thousandth
interest in a share of Series A Preferred purchasable upon exercise of each
Right should approximate the value of one Common Share.
Certain Anti-takeover Effects
The Rights approved by the Board of Directors of the Company 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
the Company's Board of Directors and its stockholders of any real opportunity
to determine the destiny of the Company. The
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Rights have been declared by the Board of Directors in order to deter such
tactics, including a gradual accumulation of shares in the open market of a 15%
(25% in the case of shares beneficially owned by Mr. Adam and 20% in the case of
acquisitions by other stockholders of record owning 10% or more of the
outstanding Common Shares on the Record Date) 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. The Rights may be redeemed by the Company at $0.005 per Right within fifteen
days after the accumulation of 15% (25% in the case of shares beneficially owned
by Mr. Adam and 20% in the case of acquisitions by other stockholders of record
owning 10% or more of the outstanding Common Shares on the Record Date) 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 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.
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.
Item 2. EXHIBITS.
1. Preferred Shares Rights Agreement, dated as of August
5, 1998 between New Era of Networks, Inc. and
BankBoston, 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.
2. Amended and Restated Certificate of Incorporation of
Registrant, as amended through May 21, 1997 (1)
3. Amended and Restated Bylaws of Registrant, as amended
through February 2, 1998. (2)
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(1) Incorporated by reference to Exhibit 3.4 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 333-20189).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31,
1997.
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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 Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized.
NEW ERA OF NETWORKS, INC.
Date: August 14, 1998
By: /s/ Stephen E. Webb
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Stephen E. Webb
Senior Vice President and Chief
Financial Officer
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EXHIBIT INDEX
Exhibit
No. Exhibit
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1 Preferred Shares Rights Agreement dated as of August 5, 1998, between New Era
of Networks, Inc. and BankBoston, 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.
2 Amended and Restated Certificate of Incorporation of Registrant, as amended
through May 21, 1997. (1)
3 Amended and Restated Bylaws of Registrant, as amended through February 2,
1998. (2)
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(1) Incorporated by reference to Exhibit 3.4 filed with the Registrant's
Registration Statement on Form S-1 (Registration No. 333-20189).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31,
1997.