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
ACTIVE POWER, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 74-2961657
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(State of Incorporation or Organization) (IRS Employer Identification No.)
11525 Stonehollow Drive, Suite 110, Austin, Texas 78758
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box.[ ] check the following box.[X]
Securities Act registration statement file number to which this form
relates:
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(If applicable)
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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Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Right
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(Title of Class)
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(Title of Class)
Item 1. Description of Registrant's Securities to be Registered.
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On December 13, 2001, the board of directors of Active Power, Inc.
declared a dividend of one preferred share purchase right for each outstanding
share of its common stock. The dividend is payable on December 26, 2001 to the
stockholders of record at the close of business on that date. Each right
entitles the registered holder to purchase from the Company a unit of one
one-thousandth of a share of its Series A Junior Participating preferred stock
(the "Series A preferred stock"), at a price of $40,000 per unit. The
description and terms of the rights are set forth in a Rights Agreement, dated
as of December 13, 2001 (the "Rights Agreement"), between the Company and
EquiServe Trust N.A. as rights agent.
Until the earlier to occur of (i) the close of business on the tenth
day after a public announcement that a person or group of affiliated or
associated persons has acquired beneficial ownership of 15% or more of the
outstanding common stock or (ii) 10 business days (or such later date as may be
determined by action of the Company's board of directors prior to such time as
any person becomes an acquiring person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 15% or more of such outstanding common stock (the earlier of such dates
is the distribution date), the rights will be evidenced, with respect to any of
the common stock certificates outstanding as of the record date, by the common
stock.
The Rights Agreement provides that, until the distribution date, the
rights will be transferred with and only with the common stock. Until the
distribution date (or earlier redemption or expiration of the rights), new
common stock certificates issued after the record date, upon transfer or new
issuance of common stock will contain a notation incorporating the Rights
Agreement by reference. Until the distribution date (or earlier redemption or
expiration of the rights), the surrender for transfer of any certificates of
common stock will also constitute the transfer of the rights associated with the
common stock represented by such certificate. As soon as practicable following
the distribution date, separate certificates evidencing the rights will be
mailed to holders of record of the common stock as of the close of business on
the distribution date and such separate rights certificates alone will evidence
the rights.
The rights are not exercisable until the distribution date. The rights
will expire at the close of business on December 26, 2011 unless that final
expiration date is extended or unless the rights are earlier redeemed or
exchanged by the company, in each case as described below.
The purchase price payable, and the number of units of Series A
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 Series A preferred stock, (ii) upon the grant to
holders of the units of Series A preferred stock of certain rights or warrants
to subscribe for or purchase units of Series A preferred stock at a price, or
securities convertible into units of Series A preferred stock with a conversion
price, less than the then current market price of the units of Series A
preferred stock or (iii) upon the distribution to holders of the units of Series
A preferred stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends paid out of earnings or retained earnings or dividends
payable in units of Series A preferred stock) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding rights and the number of units of Series A
preferred stock issuable upon exercise of each right are also subject to
adjustment in the event of a stock split of the common stock or a stock dividend
on the common stock payable in common stock or subdivisions, consolidations or
combinations of the common stock occurring, in any such case, prior to the
distribution date.
Shares of Series A preferred stock purchasable upon exercise of the
rights will not be redeemable. Each share of Series A preferred stock will be
entitled to an aggregate dividend of 1,000 times the dividend declared per share
of common stock. In the event of liquidation, the holders of the shares of
Series A preferred stock will be entitled to an aggregate payment of 1,000 times
the payment made per share of common stock. Each share of Series A preferred
stock will have 1,000 votes, voting together with the common stock. Finally, in
the event of any merger, consolidation or other transaction in which shares of
common stock are exchanged, each share of Series A
1.
preferred stock will be entitled to receive 1,000 times the amount received per
share of common stock. These rights are protected by customary anti-dilution
provisions.
Because of the nature of the dividend, liquidation and voting rights,
the value of each unit of Series A preferred stock purchasable upon exercise of
each right should approximate the value of one share of common stock.
If, after the rights become exercisable, the company is acquired in a
merger or other business combination transaction with an acquiring person or one
of its affiliates, or 50% or more of the company's consolidated assets or
earning power are sold to an acquiring person or one of its affiliates, proper
provision will be made so that each holder of a right will thereafter have the
right to receive, upon exercise thereof at the then current exercise price of
the right, that number of shares of common stock of the acquiring company which
at the time of such transaction will have a market value of two times the
exercise price of the right.
If any person or group of affiliated or associated persons becomes the
beneficial owner of 15% or more of the outstanding shares of common stock,
proper provision will be made so that each holder of a right, other than rights
beneficially owned by the acquiring person (which will thereafter be void), will
have the right to receive upon exercise that number of shares of common stock or
units of Series A preferred stock (or cash, other securities or property) having
a market value of two times the exercise price of the right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
shares of common stock and prior to the acquisition by such person or group of
50% or more of the outstanding common stock, the board of directors of the
company may exchange the rights (other than rights owned by such person or group
which have become void), in whole or in part, at an exchange ratio per unit of
Series A preferred stock equal to the purchase price divided by the then current
market price per unit of Series A preferred stock on the earlier of (i) the date
on which any person becomes an acquiring person and (ii) the date on which a
tender or exchange offer is announced which, if consummated, would result in the
offeror being the beneficial owner of 15% or more of the shares of common stock
then outstanding.
With certain exceptions, no adjustment in the purchase price will be
required until cumulative adjustments require an adjustment of at least 1% in
the purchase price. No fractional shares of Series A preferred stock will be
issued (other than fractions which are integral multiples of one
hundred-thousandth of a share of Series A preferred stock, which may, at the
election of the company, be evidenced by depositary receipts) and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
units of Series A preferred stock on the last trading day prior to the date of
exercise.
At any time on or prior to the earlier of (i) the close of business on
the tenth day after a public announcement that a person or group of affiliated
or associated persons acquire beneficial ownership of 15% or more of the
outstanding common stock (unless the board of directors extends the ten-day
period) or (ii) the tenth business day after a person commences, or announces
its intention to commence, a tender offer or exchange offer that would result in
the bidder's beneficial ownership of 15% or more of the shares of common stock,
the board of directors of the company may redeem the rights in whole, but not in
part, at a price of $0.01 per right. The redemption of the rights may be made
effective at such time on such basis and with such conditions as the board of
directors in its sole discretion may establish. Immediately upon any redemption
of the rights, the right to exercise the rights will terminate and the only
right of the holders of rights will be to receive the redemption price. The
rights are also redeemable under other circumstances as specified in the Rights
Agreement.
The terms of the rights may be amended by the board of directors of the
company without the consent of the holders of the rights except that from and
after a distribution date no amendment may adversely affect the interests of the
holders of the rights.
Until a right is exercised, the holder of a right will have no rights
by virtue of ownership as a stockholder of the company, including, without
limitation, the right to vote or to receive dividends.
2.
The rights have certain anti-takeover effects. The rights will cause
substantial dilution to a person or group that attempts to acquire the company
on terms not approved by the company's board of directors, except pursuant to an
offer conditioned on a substantial number of rights being acquired. The rights
should not interfere with any merger or other business combination approved by
the board of directors since the rights may be redeemed by the company at the
redemption price prior to the occurrence of a distribution date.
The Rights Agreement, specifying the terms of the rights, is attached
hereto as an exhibit and is incorporated herein by reference. The foregoing
description of the rights is qualified in its entirety by reference to such
exhibit.
Item 2. Exhibits.
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2.1(*) Certificate of Designation for Series A Junior Participating Preferred
Stock (included in exhibit 4.1 below).
4.1(*) Rights Agreement, dated as of December 13, 2001, between the Company
and EquiServe Trust N.A., which includes the form of Certificate of
Designation for the Series A Junior Participating preferred stock as
Exhibit A, the form of Rights Certificate as Exhibit B and the Summary
of Rights to Purchase Series A preferred stock as Exhibit C.
(*) Previously filed as an Exhibit to the Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 14,
2001, and incorporated herein by reference.
3.
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.
ACTIVE POWER, INC.
Date: December 14, 2001 By: /s/ Joseph F. Pinkerton, III
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Joseph F. Pinkerton, III
President and Chief
Executive Officer
EXHIBIT INDEX
Exhibit
Number Document Description
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2.1(*) Certificate of Designation for Series A Junior Participating
Preferred Stock (included in exhibit 4.1 below).
4.1(*) Rights Agreement, dated as of December 13, 2001, between the
Company and EquiServe Trust N.A., which includes the form of
Certificate of Designation for the Series A Junior Participating
preferred stock as Exhibit A, the form of Rights Certificate as
Exhibit B and the Summary of Rights to Purchase Series A
preferred stock as Exhibit C.
(*) Previously filed as an Exhibit to the Current Report on Form 8-K
filed with the Securities and Exchange Commission on December 14,
2001, and incorporated herein by reference.