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
Mercury Systems, Inc.
(Exact name of registrant as specified in its charter)
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Massachusetts |
04-2741391 |
(State of incorporation
or organization) |
(I.R.S. Employer
Identification No.) |
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50 Minuteman Road,
Andover, Massachusetts
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01810 |
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(Address of principal executive offices) |
(Zip Code) |
Securities to be registered pursuant to Section 12(b) of the
Act:
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Title of each class
to be so registered
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Name of each exchange on which
each class is to be registered
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Rights to Purchase Preferred Stock |
Nasdaq Global Select Market |
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.
☒
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.
☐
Securities Act registration statement file number to which this
form relates: N/A
Securities to be registered pursuant to Section 12(g) of the
Act: None
Item 1.Description
of Registrant’s Securities to Be Registered.
On December 27, 2021, the Board of Directors of Mercury Systems,
Inc. (the “Company”)
authorized and declared a dividend of one preferred share purchase
right (a “Right”)
for each outstanding share of common stock, par value $0.01 per
share (the “Company
Common Stock”)
of the Company. The dividend is payable to stockholders of record
at the close of business on January 10, 2022 (the
“Record
Date”)
(the shares of Company Common Stock issued and outstanding at a
given time do not include treasury shares of the Company) and for
each share of Company Common Stock which becomes issued and
outstanding (including shares of Company Common Stock transferred
from the Company’s treasury) thereafter and prior to the
Distribution Date (as defined below). In connection with the grant
of Rights and the adoption by the Board of Directors of the Company
(the “Board
of Directors”)
of a stockholder rights plan, the Company entered into a Rights
Agreement, dated as of December 27, 2021, between the Company and
Computershare Trust Company, N.A., as Rights Agent (the
“Rights
Agreement”).
The Rights will initially trade with, and will be inseparable from,
the shares of Company Common Stock. The Rights will not be
evidenced by separate certificates until they become exercisable.
As long as the Rights are attached to shares of Company Common
Stock, the Company will issue one Right with each newly issued
share of Company Common Stock or share of Company Common Stock
issued from treasury so that each issued and outstanding share of
Company Common Stock will have a Right attached. Following the
Distribution Date (as defined below), separate certificates
evidencing the Rights will be mailed to eligible holders of record
of shares of Company Common Stock.
The Rights will become exercisable on the earlier of (i) the
close of business on the tenth day following the first date of
public announcement (or such earlier date as a majority of the
Board of Directors shall determine that they have become aware)
that a person or group (other than the Company, any subsidiary of
the Company, any employee benefit plan maintained by the Company,
any of its subsidiaries or any entity, trustee or fiduciary holding
Company Common Stock for or pursuant to the terms of such plan) has
acquired beneficial ownership of 7.5% (10% in the case of a passive
institutional investor) or more of the then issued and outstanding
shares of Company Common Stock (an “Acquiring
Person”),
or (ii) the close of business on the tenth business day (or
such later date as may be determined by action of the Board of
Directors prior to such time as any person becomes an Acquiring
Person) following the commencement of a tender offer or exchange
offer that would result in a person or group becoming the
beneficial owner of 7.5% or more of the shares of Company Common
Stock (the earlier of (i) and (ii) above being the
“Distribution
Date”).
For purposes of the Rights Agreement, beneficial ownership by any
person will include ownership of the shares underlying options,
warrants, convertible securities, stock appreciation rights, swap
agreements or other securities or contract rights or by
counterparties under a derivatives contract to which such person is
a party. Bona fide swaps dealers acting as counterparties in
regular market participation (and not in creating swap deals to
provide synthetic ownership of Company Common Stock) are exempted
from such inclusion. The Rights Agreement also provides that if a
stockholder’s beneficial ownership of shares of Company Common
Stock as of the time of the public announcement of the rights plan
and associated grant of Rights is at or above 7.5% (10% in the case
of a passive institutional investor) of the then issued and
outstanding shares of Company Common Stock, that stockholder’s then
existing ownership percentage will be grandfathered, but the rights
would become exercisable after the Distribution Date if at any time
after such announcement the stockholder increases its ownership
percentage by 0.001% or more of the Company Common Stock then
outstanding. A person will not be deemed to be an Acquiring Person
under the Rights Agreement if such person becomes the beneficial
owner of 7.5% (10% in the case of a passive institutional investor)
or more of the then issued and outstanding shares of Company Common
Stock solely because of a change in the aggregate number of shares
of Company Common Stock since the last date on which such person
acquired beneficial ownership of any shares of Company Common Stock
and who has not acquired beneficial ownership of any additional
shares since the date on which such person became such a beneficial
owner. In addition, a person will also not be deemed to be an
Acquiring Person if it becomes the beneficial owner of 7.5% (10% in
the case of a passive institutional investor) or more of the then
issued and outstanding shares of Company Common Stock if the Board
of Directors determines that such person has acquired such shares
in the good faith belief that such acquisition would not cause such
beneficial ownership to equal or exceed 7.5% (10% in the case of a
passive institutional investor) or more of the then issued and
outstanding shares of Company Common Stock or otherwise cause a
Distribution Date to occur and such person has divested or divests
within five business days of notice from the Company a sufficient
number of shares of Company Common Stock to fall below 7.5% (10% in
the case of a passive institutional investor) or terminate any
applicable derivatives contract.
The Rights are not exercisable until the Distribution Date and will
expire upon the earlier of the close of business on the first
anniversary of the date of the Rights Agreement, the date on which
the Rights are redeemed by the Company pursuant to the terms of the
Rights Agreement (as described below), or the date on which the
Rights are exchanged by the Company pursuant to the terms of the
Rights Agreement (as described below).
Each Right entitles the registered holder thereof, subject to the
terms of the Rights Agreement, to purchase from the Company one
one-thousandth of a share (a “Unit”)
of Series A Junior Preferred Stock, par value $0.01 per share, of
the Company (the “Preferred
Stock”),
at an exercise price of $279.60 per Unit, subject to
adjustment.
Flip-in Feature:
If a person or group becomes an Acquiring Person, then each Right
will entitle its holder to purchase after the Distribution Date, at
the Right’s then-current exercise price, Units of Preferred Stock
(or, in certain circumstances, cash, assets or other securities of
the Company) having a market value equal to twice the then-current
market price per Unit of Preferred Stock. At such time, all Rights
that are beneficially owned, or thereafter acquired, by any
Acquiring Person or its affiliates or associates (or, under certain
circumstances, a transferee thereof) will be null and
void.
Flip-over Feature:
If, after a person or group becomes an Acquiring Person,
(i) the Company is acquired in a consolidation or merger and
the Company is not the surviving corporation (other than, in
certain circumstances, a merger of consolidation with a subsidiary
of the Company) (ii) any person consolidates or merges with
the Company and all or part of the shares of Company Common Stock
are converted or exchanged for securities, cash or property of any
other person, or (iii) 50% or more of the Company’s assets or
earning power is sold or transferred, each Right (except Rights
which previously have been voided as described above) will entitle
its holder to receive, at the Right’s then-current exercise price,
common stock of the person acquiring the Company (or its ultimate
parent entity, as applicable) having a value equal to two times
then-current market price per share of common stock of such person
acquiring the Company (or its ultimate parent entity, as
applicable).
Anti-Dilution Provisions.
The Board of Directors shall have the right to adjust, among other
things, the exercise price, as well as the number of Units of
Preferred Stock issuable, and the number of outstanding Rights to
prevent dilution that may occur from a share dividend, a share
split, or a reclassification of the Preferred Stock.
Redemption.
Prior to the expiration of the Rights Agreement or the close of
business on the tenth day following the first date of public
announcement of a person becoming an Acquiring Person or such
earlier date as the Board of Directors determines that they have
become aware of the existence of an Acquiring Person (such first
date of public announcement or earlier date as determined by the
Board of Directors, the “Stock
Acquisition Date”),
the Board of Directors may redeem all but not less than all of the
Rights at a price of $0.01 per Right (as such amount may be
adjusted to reflect any stock split, stock dividend or similar
transaction, the “Redemption
Price”),
payable, at the election of the Board of Directors, in cash or
shares of Company Common Stock. Once the Rights are redeemed, the
Rights will terminate and the holders of Rights will only be
entitled to receive the Redemption Price.
Exchange.
At any time after any person or group becomes an Acquiring Person,
the Board of Directors may, at its option, exchange some or all of
the Rights for (i) one Unit per Right or (ii) such number of Units
per Right as then equal (x) the difference between the aggregate
market price of the number of Units to be received upon a person
becoming an Acquiring Person and the then-current exercise price of
the Rights, divided by (y) the then-current market price per Unit
upon the earlier of (A) the date on which a person becomes an
Acquiring Person and (B) the date on which a tender or exchange
offer by any person (other than the Company, any subsidiary of the
Company, any employee benefit plan maintained by the Company, any
of its subsidiaries or any entity, trustee or fiduciary holding
Company Common Stock for or pursuant to the terms of such plan) is
commenced within the meaning of Rule 14d-2 promulgated under the
Securities Exchange Act of 1934 or any successor rule, if upon
consummation thereof such person would be the beneficial owner of
7.5% or more of the shares of Company Common Stock issued and
outstanding. The Board of Directors is not permitted to exercise
its option to exchange the Rights as described in clause (i) of the
preceding sentence if any person or group (other than the Company,
any subsidiary of the Company, any employee benefit plan maintained
by the Company, any of its subsidiaries or any entity, trustee or
fiduciary holding Company Common Stock for or pursuant to the terms
of such plan), together with its affiliates and associates, becomes
the beneficial owner of 50% or more of the then issued and
outstanding shares of Company Common Stock.
Amendments.
The Company may amend the Rights Agreement in any way at any time
prior to the Distribution Date. After the Distribution Date, the
Company may amend the Rights Agreement without the approval of
Rights holders in order (a) to cure any ambiguity, (b) to
correct or supplement any defective or inconsistent provision,
(c) subject to certain exceptions, to shorten or lengthen
any time period as permitted by the Rights Agreement or
(d) subject to certain exceptions, to change or
supplement the Rights Agreement in any manner that would not
adversely affect the interests of Rights holders.
Preferred Stock Provisions.
Each Unit of Preferred Stock, if issued:
•will
entitle holders to certain dividend and liquidation
payments;
•will
not be redeemable;
•will
entitle holders to one vote, voting together with shares of Company
Common Stock;
•will
entitle holders, if shares of Company Common Stock are exchanged
via merger, consolidation, or a similar transaction, to a per share
payment equal to the payment made on one share of Company Common
Stock; and
•will
be protected by customary anti-dilution provisions with respect to
dividends, liquidation and voting rights, and in the event of
mergers and consolidations.
Because of the nature of the Preferred Stock’s dividend and
liquidation rights, the economic value of one Unit of Preferred
Stock that may be acquired upon the exercise of each Right should
approximate the economic value of one share of Company Common
Stock.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to
acquire control of the Company on terms not approved by the Board
of Directors. However, the Rights should not interfere with any
transaction approved by the Board of Directors because (i) the
Rights may be redeemed by the Board of Directors at a nominal price
of $0.01 per Right at any time prior to the close of business on
the tenth day following the Stock Acquisition Date, and
(ii) the Rights Agreement may be amended prior to the
Distribution Date so that it does not interfere with such merger or
other business combination. Thus, the Rights are intended to
encourage persons who may seek to acquire control of the Company to
initiate such an acquisition through negotiations with the
Company’s Board of Directors. However, the effect of the Rights may
be to discourage a third party from making a tender offer or
otherwise attempting to obtain a substantial equity position in the
equity securities of, or seeking to obtain control of, the Company.
To the extent any potential acquirors are deterred by the Rights,
the Rights may have the effect of preserving incumbent management
in office.
A copy of the Articles of Amendment to the Company’s Restated
Articles of Organization relating to the designation of the
Preferred Stock that the Company filed with the Secretary of the
Commonwealth of Massachusetts on December 28, 2021 to designate
the Preferred Stock is filed as Exhibit
3.1
and is incorporated herein by reference.
The Rights Agreement between the Company and the Rights Agent is
attached hereto as
Exhibit 4.1
and is incorporated herein by reference. The foregoing description
of the Rights does not purport to be complete and is qualified in
its entirety by reference to such
Exhibit 4.1,
which is incorporated herein by reference.
Item 2.Exhibits.
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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Dated: December 29, 2021 |
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MERCURY SYSTEMS, INC. |
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By: |
/s/ Christopher C. Cambria |
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Christopher C. Cambria |
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Executive Vice President, General Counsel, and
Secretary |
Mercury Systems (NASDAQ:MRCY)
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