UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PACKETEER, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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77-0420107
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(State of incorporation or organization)
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(I.R.S. Employer Identification No.)
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10201 North De Anza Blvd.
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Cupertino, California
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95014
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(Address of principal executive offices)
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(Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which
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to be so registered
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each class is to be registered
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Preferred Stock Purchase Rights, no par value
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The NASDAQ Stock Market LLC
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If this form relates to the registration of a class of securities pursuant to Section 12(b) of
the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box.
þ
If this form relates to the registration of a class of securities pursuant to Section 12(g) of
the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box.
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Securities Act registration statement file number to which this form relates: Not applicable.
Securities to be registered pursuant to Section 12(g) of the Act: None.
TABLE OF CONTENTS
Item 1. Description of Registrants Securities to be Registered.
On March 31, 2008, Directors of Packeteer, Inc. (the Company) declared a dividend
distribution of one Preferred Stock Purchase Right (each a Right and collectively the Rights)
for each outstanding share of Common Stock, $0.001 par value (Common Stock), of the Company. The
distribution will be paid as of April 14, 2008 (the Record Date), to stockholders of record on
that date. Each Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of the Companys Series A Preferred Stock, $0.001 par value (the
Preferred Stock), at a price of $21.00 (the Purchase Price). The description and terms of the
Rights are set forth in the Rights Agreement dated as of April 1, 2008 (the Rights Agreement),
between the Company and Computershare Trust Company, N.A. (the Rights Agent).
Until the earlier to occur of (i) the tenth day following the first date of public
announcement by the Company or by a person or group of affiliated or associated persons (Acquiring
Person) other than the Company or Subsidiary of the Company, including, without limitation, in its
fiduciary capacity, any employee benefit plan or employee stock plan of the Company or of any
Subsidiary of the Company, or any Person, organized, appointed, established or holding Common Stock
for or pursuant to the terms of any such plan or any Person funding other employee benefits for
employees of the Company or any Subsidiary of the Company (Exempt Person), that such an Acquiring
Person has acquired, or obtained the right to acquire, without approval of the Board of Directors
or good faith determination of the Board of Directors that such a person or group of affiliated or
associated persons has inadvertently become an Acquiring Person, beneficial ownership of securities
of the Company representing 15% or more of the outstanding Common Stock of the Company (other than
solely as a result of a reduction in the outstanding shares of the Common Stock of the Company) or
such earlier date as a majority of the Board of Directors shall become aware of such acquisition of
the Common Stock (the Stock Acquisition Date) (or, if the tenth day after the Stock Acquisition
Date occurs before the Record Date, the close of business on the Record Date) or (ii) the tenth
business day (subject to extension by the Board on or after April 1, 2008 and prior to the time a
person becomes an Acquiring Person) following the commencement of, or public announcement of an
intention to commence, a tender or exchange offer by any person (other than by an Exempt Person),
including an offer commenced prior to April 1, 2008, the consummation of which would result in the
beneficial ownership of 15% or more of the outstanding Common Stock by such person, together with
its affiliates and associates (the earlier of such dates being called the Distribution Date), the
Rights will be evidenced, with respect to all shares of Common Stock that are issued after the
Record Date prior to the Distribution Date (or earlier redemption or expiration of the Rights), by
certificates representing such shares of Common Stock together with the Summary of Rights attached
thereto.
The Rights Agreement provides that, until the Distribution Date (or earlier redemption or
expiration of the Rights), the Rights will be represented by and transferred with, and only with,
the Common Stock. Until the Distribution Date (or earlier redemption or expiration of the Rights),
new certificates issued for Common Stock (including, without limitation, certificates issued upon
transfer or exchange of Common Stock) after the Record Date, will contain a legend incorporating
the Rights Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any of the Companys
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Common Stock certificates, with or without the aforesaid legend or the Summary of Rights
attached thereto, 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 (Right Certificates) will be mailed to holders of record of
the Companys Common Stock as of the close of business on the Distribution Date, and such separate
certificates alone will evidence the Rights from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. The Rights will expire upon the
earlier of (i) March 31, 2009 or (ii) redemption or exchange by the Company.
The Purchase Price payable, and the number of shares 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) upon the grant to holders of the Preferred Stock of
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 dividends payable in Preferred
Stock) or of subscription rights or warrants (other than those referred to above). The number of
Rights associated with each share of Common Stock is 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.
The Preferred Stock 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 other series). Each share of Preferred Stock will have a preferential cumulative
quarterly dividend in an amount equal to 1000 times the dividend declared on each share of Common
Stock. In the event of liquidation, the holders of Preferred Stock will receive a preferred
liquidation payment equal to an amount per share equal to 1000 times the aggregate payment to be
distributed per share of Common Stock. Each share of Preferred Stock will have 1000 votes, voting
together with the shares of Common Stock. 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 Preferred Stock will be entitled to receive 1000 times
the amount and type of consideration received per share of Common Stock. The rights of the
Preferred Stock as to dividends, liquidation and voting, and in the event of mergers and
consolidations, are protected by customary anti-dilution provisions. Fractional shares (in
integral multiples of one one-thousandth) of Preferred Stock will be issuable; however, the Company
may elect to distribute depositary receipts in lieu of such fractional shares. In lieu of
fractional shares other than fractions that are multiples of one one-thousandth of a share, 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. Because of the nature of the Preferred Stocks
dividend, liquidation and voting rights, the value of one one-thousandth of a share of Preferred
Stock purchasable upon exercise of each Right should approximate the value of one share of Common
Stock.
In the event (i) any person becomes an Acquiring Person or (ii) any Acquiring Person or any of
its Affiliates or Associates, directly or indirectly, (1) consolidates with or merges into the
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Company or any of its subsidiaries or otherwise combines with the Company or any of its
subsidiaries in a transaction in which the Company or such subsidiary is the continuing or
surviving corporation of such merger or combination and the Common Stock of the Company remains
outstanding and no shares thereof shall be changed into or exchanged for stock or other securities
of any other person or of the Company or cash or any other property, (2) transfers, in on one or
more transactions, any assets to the Company or any of its subsidiaries in exchange for capital
stock of the Company or any of its subsidiaries or for securities exercisable for or convertible
into capital stock of the Company or any of its subsidiaries or otherwise obtains from the Company
or any of its subsidiaries, with or without consideration, any capital stock of the Company or any
of its subsidiaries or securities exercisable for or convertible into capital stock of the Company
or any of its subsidiaries (other than as part of a pro rata offer or distribution to all holders
of such stock), (3) sells, purchases, leases, exchanges, mortgages, pledges, transfers or otherwise
disposes to, from or with the Company or any of its subsidiaries, as the case may be, assets on
terms and conditions less favorable to the Company or such subsidiary than the Company or such
subsidiary would be able to obtain in arms-length negotiation with an unaffiliated third party,
(4) receives any compensation from the Company or any of its subsidiaries for services other than
compensation for employment as a regular or part-time employee, or fees for serving as a director
at rates in accordance with the Companys (or its subsidiarys) past practice, (5) receives the
benefit (except proportionately as a stockholder) of any loans, advances, guarantees, pledges or
other financial assistance or tax credit or advantage, or (6) engages in any transaction with the
Company (or any of its subsidiaries) involving the sale, license, transfer or grant of any right
in, or disclosure of, any patents, copyrights, trade secrets, trademarks or know-how (or any other
intellectual or industrial property rights recognized under any countrys intellectual property
rights laws) which the Company (including its subsidiaries) owns or has the right to use on terms
and conditions not approved by the Board of Directors of the Company, or (iii) while there is an
Acquiring Person, there shall occur any reclassification of securities (including any reverse stock
split), any recapitalization of the Company, or any merger or consolidation of the Company with any
of its subsidiaries or any other transaction or transactions involving the Company or any of its
subsidiaries (whether or not involving the Acquiring Person) which have the effect of increasing by
more than 1% the proportionate share of the outstanding shares of any class of equity securities of
the Company or any of its subsidiaries which is directly or indirectly owned or controlled by the
Acquiring Person (such events are collectively referred to herein as the Flip-In Events), then,
and in each such case, each holder of record of a Right, other than the Acquiring Person, will
thereafter have the right to receive, upon payment of the then current Purchase Price, in lieu of
one one-thousandth of a share of Preferred Stock per outstanding Right, that number of shares of
Common Stock having a market value at the time of the transaction equal to the Purchase Price (as
adjusted to the Purchase Price in effect immediately prior to the Flip-In Event multiplied by the
number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable
immediately prior to such Flip-In Event) divided by one-half the average of the daily closing
prices per share of the Common Stock for the thirty consecutive trading days (Current Market
Price) on the date of such Flip-In Event. Notwithstanding the foregoing, Rights held by the
Acquiring Person or any Associate or Affiliate thereof or certain transferees will be null and void
and no longer be transferable.
The Company may at its option substitute for a share of Common Stock issuable upon the
exercise of Rights in accordance with this paragraph such number or fractions of shares of
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Preferred Stock having an aggregate current market value equal to the Current Market Price of
a share of Common Stock. In the event that insufficient shares of Common Stock are available to
permit the exercise in full of the Rights in accordance with the foregoing paragraph, the Board of
Directors shall, to the extent permitted by applicable law and any material agreements then in
effect to which the Company is a party, (A) determine the excess (such excess, the Spread) of
(1) the value of the shares of Common Stock issuable upon the exercise of a Right in accordance
with this paragraph (the Current Value) over (2) the Purchase Price, and (B) with respect to each
Right (other than Rights which have become void pursuant to the foregoing paragraph), make adequate
provision to substitute for the shares of Common Stock issuable in accordance with this paragraph
upon exercise of the Right and payment of the Purchase Price, (1) cash, (2) a reduction in such
Purchase Price, (3) shares of Preferred Stock or other equity securities of the Company (including,
without limitation, shares or fractions of shares of preferred stock which, by virtue of having
dividend, voting and liquidation rights substantially comparable to those of the shares of Common
Stock, are deemed in good faith by the Board of Directors to have substantially the same value as
the shares of Common Stock, (4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having a value which, when added to the value of the shares of Common
Stock actually issued upon exercise of such Right, shall have an aggregate value equal to the
Current Value (less the amount of any reduction in such Purchase Price);
provided
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however
, that if the Company shall not make adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the Flip-In Event, then the Company shall be
obligated to deliver, to the extent permitted by applicable law and any material agreements then in
effect to which the Company is a party, upon the surrender for exercise of a Right and without
requiring payment of such Purchase Price, shares of Common Stock (to the extent available), and
then, if necessary, such number or fractions of shares of Preferred Stock (to the extent available)
and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread.
Rights are not exercisable following the occurrence of the events set forth in the foregoing
paragraph until the expiration of the period during which the Rights may be redeemed as described
below.
Unless the Rights are earlier redeemed, in the event that following the first occurrence of a
Flip-In Event, the Company were to be acquired in a merger or other business combination in which
any shares of the Companys Common Stock are exchanged or converted for other securities or assets
(other than a merger or other business combination in which the voting power represented by the
Companys securities outstanding immediately prior thereto continues to represent all of the voting
power represented by the securities of the Company thereafter and the holders of such securities
have not changed as a result of such transaction), or 50% or more of the assets or earning power of
the Company and its subsidiaries (taken as a whole) were to be sold or transferred in one or a
series of related transactions (such transactions are collectively referred to herein as the
Flip-Over Events), the Rights Agreement provides that proper provision shall be made so that each
holder of record of a Right (other than an Acquiring Person, or affiliates or associates thereof)
will from and after such date have the right to receive, upon payment of the then current Purchase
Price, that number of shares of common stock of the acquiring company having a market value at the
time of such transaction equal to the Purchase Price divided by one-half the Current Market Price
of such common stock.
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No fractional shares of Common Stock will be issued upon exercise of the Rights and, in lieu
thereof, a payment in cash will be made to the holder of such Rights equal to the same fraction of
the current market value of a share of Common Stock.
At any time until the occurrence of a Flip-In Event, the Board may redeem the Rights in whole,
but not in part, at a price of $0.001 per Right. Immediately upon the action of the Board of
Directors of the Company authorizing 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
without any interest thereon.
At any time after the occurrence of a Flip-In Event and prior to the earlier of a Flip-Over
Event or such time as any Person (other than an Exempt Person), together with all Affiliates and
Associates, becomes the Beneficial Owner of more than 50% of the Common Stock outstanding, the
Board of Directors of the Company may, at its option, exchange all or any portion of the
outstanding Rights (other than Rights held by any Acquiring Person which have become void) for
shares of Common Stock on a pro rata basis, at an exchange ratio of one share of Common Stock or
one one-thousandth of a share of Preferred Stock (or of a share of a class or series of the
Companys Preferred Stock having equivalent rights, preferences and privileges) per Right.
Immediately upon the ordering of such exchange and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive
shares of Common Stock or Common Stock Equivalents pursuant to the exchange. In the event there
are insufficient shares of Common Stock issued but not outstanding or authorized but unissued to
permit any exchange of Rights, the Company shall take all actions necessary to authorize additional
shares.
Until the Rights become nonredeemable the Company may amend the Rights Agreement in any
manner. After the Rights become nonredeemable, the Company may amend the Rights Agreement to cure
any ambiguity, to correct or supplement any provision which may be defective or inconsistent with
any other provisions, or to shorten or lengthen any time period under the Rights Agreement, or to
arrange or supplement the provisions hereunder in any manner which the Company may deem necessary
or desirable, provided that no such amendment may adversely affect the interests of the holders of
the Rights (other than the Acquiring Person or its affiliates or associates) or cause the Rights to
again be redeemable or the Agreement to again be freely amendable.
Until a Right is exercised, the holder, as such, will have no rights as a stockholder of the
Company, including, without limitation, the right to vote or to receive dividends.
The issuance of the Rights is not taxable to the Company or to stockholders under presently
existing federal income tax law, and will not change the way in which stockholders can presently
trade the Companys shares of Common Stock. If the Rights should become exercisable, stockholders,
depending on then existing circumstances, may recognize taxable income.
The Rights have certain anti-takeover effects. Under certain circumstances the Rights could
cause substantial dilution to a person or group who attempts to acquire the Company on
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terms not approved by the Companys Board of Directors. However, the Rights should not
interfere with any merger or other business combination approved by the Board.
The form of Rights Agreement between the Company and Computershare Trust Company, N.A. as
Rights Agent (including as
Exhibit A
the form of Certificate of Designation, Preferences
and Rights of the Terms of the Series A Preferred Stock, as
Exhibit B
the form of Right
Certificate, and as
Exhibit C
the Summary of Terms of Rights Agreement) and the Companys
press release dated April 1, 2008 are attached hereto as
Exhibit 1
and
Exhibit 2
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respectively, and incorporated herein by reference. The foregoing description of the Rights is
qualified in its entirety by reference to such exhibits.
Item 2. Exhibits.
The form of Rights Agreement between the Company and Computershare Trust Company, N.A. as
Rights Agent (including as
Exhibit A
the form of Certificate of Designation, Preferences
and Rights of the Terms of the Series A Preferred Stock, as
Exhibit B
the form of Right
Certificate, and as
Exhibit C
the Summary of Terms of Rights Agreement) and the Companys
press release dated April 1, 2008 are attached hereto as
Exhibit 1
and
Exhibit 2
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respectively, and incorporated herein by reference.
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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 registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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Packeteer, Inc.
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Date: April 3, 2008
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By:
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/s/
Dave Côté
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Name:
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Dave Côté
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Title:
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President and Chief Executive Officer
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EXHIBIT INDEX
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Exhibit
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Description
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1
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Form of Rights Agreement between the Company and Computershare
Trust Company, N.A., as Rights Agent (including as
Exhibit A
the
form of Certificate of Designation, Preferences and Rights of the
Terms of the Series A Preferred Stock, as
Exhibit B
the form of
Right Certificate, and as
Exhibit C
the Summary of Terms of Rights
Agreement) (incorporated by reference to
Exhibit 1
from
Registrants Form 8-K dated April 3, 2008.
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2
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Press Release, dated April 1, 2008 (incorporated by reference to
Exhibit 2
from Registrants Exhibit (a)(2) to Schedule 14D-9 dated
April 1, 2008.
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