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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 1 TO
FORM 8-A REGISTRATION STATEMENT
THIRD WAVE TECHNOLOGIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 39-1791034
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(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
502 South Rosa Road, Madison, WI 53719-1256
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration If this form relates to the
of a class of securities pursuant to registration of a class of
Section 12(b) of the Exchange Act and is securities pursuant to Section 12(g)
effective pursuant to General of the Exchange Act and is effective
Instruction A.(c), please check the pursuant to General Instruction
following box. [ ] A.(d), please check the following
box: [x]
Securities Act registration statement file number to which
this form relates: None
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
The Registrant hereby amends the following items of the Form 8-A
Registration Statement it filed with the Securities and Exchange Commission (the
"SEC") on November 30, 2001.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On October 24, 2001, the Board of Directors of Third Wave
Technologies, Inc. (the "Company") declared a dividend to stockholders of record
at the close of business on December 20, 2001 (the "Record Date") 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"). 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 $60.00 (the "Purchase
Price"), subject to adjustment.
The following summary of the principal terms of the Stock
Rights Agreement, dated as of October 24, 2001, as amended by Amendment No. 1,
dated as of February 17, 2003 (the "Rights Agreement"), between the Company and
EquiServe Trust Company, N.A., as Rights Agent (the "Rights Agent"), is a
general description only and is subject and qualified in its entirety by
reference to the Rights Agreement, which is incorporated herein by reference. A
copy of the Rights Agreement is available free of charge from the Rights Agent.
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 public announcement that 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 (16.5% or more
in the case of the State of Wisconsin Investment Board ("SWIB")), of the Common
Shares then outstanding and (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
ownership by a person or group of 15% or more (16.5% or more in the
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case of the SWIB) of the Company's then outstanding Common Shares. 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 [the Rights Certificate]
alone will evidence the Rights from and after the Distribution Date. All Common
Shares issued after the Distribution Date will be issued with Rights. The Rights
will expire on the earliest of (i) December 20, 2011, (the "Final Expiration
Date") and (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 a
person or group 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 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 a person or group becomes an Acquiring Person, (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, 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 a person or group becomes an Acquiring
Person and prior to the acquisition by such Acquiring Person of 50% or more of
the Company's outstanding Common
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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 date any person or group becomes an
Acquiring Person (or such later date as may be determined by action of the
Company's Board of Directors and publicly announced by the Company), and (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.
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.
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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 (16.5% or greater position in the case of the SWIB) 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.
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ITEM 2. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4.1 Rights Agreement, dated as of October 24, 2001, between the
Company and EquiServe Trust Company N.A., as Rights Agent,
which includes the Form of the Certificate of Designation of
the Series A Junior Participating Preferred Stock of the
Company as Exhibit A, the Form of Rights Certificate as
Exhibit B and the Summary of Rights to Purchase Preferred
Stock as Exhibit C, is incorporated herein by reference to
Exhibit 4.9 to the Company's Current Report on Form 8-A
Registration Statement, dated November 29, 2001.
4.2 Amendment No. 1, dated as of February 18, 2003, to Rights
Agreement, dated as of October 24, 2001, between the Company
and EquiServe Trust Company N.A., as Rights Agent.
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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 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
THIRD WAVE TECHNOLOGIES, INC.
Date: February 18, 2003 By: /s/ John Comerford
Name: John Comerford
Title: Vice President, General Counsel &
Secretary
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4.1 Rights Agreement, dated as of October 24, 2001, between the
Company and EquiServe Trust Company N.A., as Rights Agent,
which includes the Form of the Certificate of Designation of
the Series A Junior Participating Preferred Stock of the
Company as Exhibit A, the Form of Rights Certificate as
Exhibit B and the Summary of Rights to Purchase Preferred
Stock as Exhibit C, is incorporated herein by reference to
Exhibit 4.9 to the Company's Current Report on Form 8-A
Registration Statement, dated November 29, 2001.
4.2 Amendment No. 1, dated as of February 18, 2003, to Rights
Agreement, dated as of October 24, 2001, between the Company
and EquiServe Trust Company N.A., as Rights Agent.