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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HYPERION SOFTWARE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 06-1326879
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(State of incorporation (IRS Employer
or organization) Identification No.)
777 Long Ridge Road, Stamford, CT 06902
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(Address of principal executive offices) (Zip Code)
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 N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Junior Preferred Stock Purchase Rights
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(Title of Class)
Page 1 of __ Pages The exhibit index is on page 7.
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Item 1. Description of Registrant's Securities to be Registered
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On November 17, 1995, the Board of Directors of Hyperion Software
Corporation (the "Company") declared a dividend of one preferred stock purchase
right (a "Right") for each outstanding share of the Company's Common Stock to
stockholders of record at the close of business on December 1, 1995 (the
"Record Date"). Each Right entitles the registered holder to purchase from the
Company a unit consisting of one one-hundredth of a share (a "Unit") of Series
A Junior Participating Preferred Stock, $.01 par value per share (the
"Preferred Stock"), at a purchase price of $150.00 per Unit giving effect to
the two-for-one stock split authorized and declared by the Board of Directors
on November 17, 1995, (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and American Stock Transfer & Trust
Company, as Rights Agent, a copy of which is filed as Exhibit 4.1 hereto.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of more than 15% of the outstanding shares of Common Stock (the
"Stock Acquisition Date"), (ii) 10 business days following the commencement of
a tender offer or exchange offer that may result in a person or group
beneficially owning 15% or more of such outstanding shares of Common Stock or
(iii) 10 business days after the Continuing Directors (as defined below) of the
Company shall declare any Person to be an Adverse Person, upon a determination
that such Person, alone or together with its affiliates and associates, has
become the Beneficial Owner of an amount of Common Stock which the Continuing
Directors determine to be substantial (which amount shall in no event be less
than 10% of the shares of Common Stock then outstanding) and a majority of the
Continuing Directors (with the concurrence of a majority of the Independent
Directors (as defined below)) determines, after reasonable inquiry and
investigation, including consultation with such persons as such directors shall
deem appropriate, that (a) such beneficial ownership by such person is intended
to cause the Company to repurchase the Common Stock beneficially owned by such
person or to cause pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such person with
short-term financial gain under circumstances where such directors determine
that the best long-term interests of the Company and its stockholders would not
be served by taking such action or entering into such transaction or series of
transactions at that time or (b) such beneficial ownership is causing or is
reasonably likely to cause a material adverse impact (including, but not
limited to, impairment of relationships with customers, impairment of the
Company's ability to maintain its competitive position or impairment of the
Company's business reputation or ability to deal with government agencies) on
the business or prospects of the Company.
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Until the Distribution Date (or earlier redemption or expiration of the
Rights), (i) the Rights will be evidenced by the Common Stock certificates and
will be transferred with and only with such Common Stock certificates, (ii) new
Common Stock certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding, even without such
notation, will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. Pursuant to the Rights Agreement,
the Company reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise of Rights, a number
of Rights may be exercised so that only whole shares of Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on December 1, 2005, unless earlier redeemed by the
Company as described below.
As soon as practicable after the Distribution Date, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the Distribution Date
and, thereafter, such separate Rights Certificates alone will represent the
Rights. Except as otherwise determined by the Board of Directors and except in
connection with shares of Common Stock issued upon the exercise of employee
stock options, issuances under other employee stock benefit plans or upon the
conversion of convertible securities issued hereafter, only shares of Common
Stock issued prior to the Distribution Date will be issued with Rights.
In the event that the Continuing Directors determine that a person is an
Adverse Person or, at any time following the Distribution Date, (i) the Company
is the surviving corporation in a merger with an Acquiring Person and its
Common Stock is not changed or exchanged, (ii) a Person becomes the beneficial
owner of more than 20% of the then outstanding shares of Common Stock (except
pursuant to an offer for all outstanding shares of Common Stock which the
Independent Directors determine to be fair to, and otherwise in the best
interests of, the Company and its stockholders), (iii) an Acquiring Person
engages in one or more "self-dealing" transactions as set forth in the Rights
Agreement, or (iv) during such time as there is an Acquiring Person, an event
occurs which results in such Acquiring Person's ownership interest being
increased by more than 1% (e.g., a reverse stock split), each holder of a Right
will thereafter have the right to receive, upon exercise, that number of shares
of Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) which equals the exercise price of the Right divided
by one-half of the current market price (as defined in the Rights Agreement) of
the Common Stock at the date of the occurrence of the event. However, Rights
are not exercisable following the occurrence of any of the events set forth
above until such time as the Rights are no longer redeemable by the Company as
set forth below. Notwithstanding any of the foregoing, following the occurrence
of any of the events set forth in this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights Agreement were,
beneficially owned by an Acquiring Person or an Adverse Person will be null and
void. The events set forth in this paragraph are described
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in Section 11(a)(ii) of the Rights Agreement and are referred to as "Section
11(a)(ii) Events."
In the event that, at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction
in which the Company is not the surviving corporation (other than a merger
which follows an offer determined by the Board of Directors to be fair as
described in clause (ii) of the second preceding paragraph), or (ii) more than
50% of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, that number
of shares of common stock of the acquiring company which equals the exercise
price of the Right divided by one-half of the current market price (as defined
in the Rights Agreement) of such common stock at the date of the occurrence of
the event. The events set forth in this paragraph and in the preceding
paragraph are referred to as the "Triggering Events."
At any time after the occurrence of a Section 11(a)(ii) Event, a majority
of the Continuing Directors may exchange the Rights (other than Rights owned by
an Acquiring Person or Adverse Person which have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, or one Common Stock
Equivalent (as defined in the Rights Agreement), per Right (subject to
adjustment).
The Purchase Price payable, and the number of Units of Preferred Stock 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 on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities
at less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in part, at
any time until ten days following the Stock Acquisition Date, at a price of
$.01 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Under certain circumstances set forth
in the Rights Agreement, the decision to redeem shall require the concurrence
of a majority of the Continuing Directors. The Company may not redeem the
Rights if the Continuing Directors have previously declared a person to be an
Adverse Person. After the redemption period has expired, the Company's right of
redemption may be reinstated if either (i) an Acquiring Person reduces
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its beneficial ownership to less than 15% of the outstanding shares of Common
Stock in a transaction or a series of transactions not involving the Company,
or (ii) the Board of Directors approves the merger of the Company with, or
acquisition of the Company by, a Person unrelated to the Acquiring Person.
Immediately upon the action of the Board of Directors ordering redemption of
the Rights, with, where required, the concurrence of the Continuing Directors,
the Rights will terminate and the only right of the holders of Rights will be
to receive the $.01 per Right redemption price.
The term "Continuing Directors" means any member of the Board of Directors
of the Company who was a member of the Board of directors on the date of the
Rights Agreement, and any person who is subsequently elected to the Board of
Directors if such person is recommended or approved by a majority of the
Continuing Directors, but shall not include an Acquiring Person, an Adverse
Person or an affiliate or associate of an Acquiring Person or an Adverse
Person, or any representative of the foregoing entities. The term "Independent
Directors" means Continuing Directors who are not officers of the Company.
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. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set forth above.
Other than those provisions relating to the Redemption Price, Purchase
Price or Final Expiration Date of the Rights, or the number of shares of
Preferred Stock for which Rights are exercisable, any of the provisions of the
Rights Agreement may be amended by the Board of Directors of the Company prior
to the earlier to occur of the determination that a person is an Adverse Person
or the Distribution Date. After the earlier of such events, the provisions of
the Rights Agreement may be amended by the Board of Directors (in certain
circumstances, with the concurrence of the Continuing Directors) in order to
cure any ambiguity, to make changes which do not adversely affect the interests
of holders of Rights (excluding the interests of any Acquiring Person or any
Adverse 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.
Item 2. Exhibits
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Exhibit No. Exhibit
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1 Rights Agreement, dated as of November 17, 1995, between
Hyperion Software Corporation and American Stock Transfer &
Trust Company, which includes as Exhibit A the Form of
Certificate of Designations, as Exhibit B the Form of Rights
Certificate, and as Exhibit C the Summary of Rights to Purchase
Preferred Stock.
Page 5 of__ Pages
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SIGNATURE
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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.
HYPERION SOFTWARE
CORPORATION
By: /s/ Lucy Ricciardi
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Lucy Ricciardi
Chief Financial Officer
Dated: November 17, 1995
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EXHIBIT INDEX
Page Number in
Exhibit Sequentially
Number Description Numbered Copy
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1 Rights Agreement, dated as of November 17, 1995,
between Hyperion Software Corporation and
American Stock Transfer & Trust Company,
which includes as Exhibit A the Form of
Certificate of Designations, as Exhibit B the
Form of Rights Certificate, and as Exhibit C the
Summary of Rights to Purchase Preferred Stock.
Page 7 of__ Pages