FLUIDIGM CORPORATION (NASDAQ:FLDM) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
On November 21, 2016, the Board of Directors (the Board) of
Fluidigm Corporation (the Company) authorized and declared a
dividend distribution of one right (a Right) for each outstanding
share of common stock, par value $0.001 per share (the Common
Shares), of the Company to stockholders of record as of the close
of business on December 1, 2016 (the Record Date). Each Right
entitles the registered holder to purchase from the Company one
one-thousandth of a share of SeriesA Participating Preferred
Stock, par value $0.001 per share (the Preferred Shares), of the
Company at an exercise price of $35.00 (the Exercise Price) per
one one-thousandth of a Preferred Share, subject to adjustment.
The complete terms of the Rights are set forth in a Tax Benefit
Preservation Plan (the Plan), dated as of November 21, 2016,
between the Company and Computershare Inc., as rights agent. The
Company expects to submit the Plan to a stockholder vote at the
Companys 2017 Annual Meeting of Stockholders.
By adopting the Plan, the Board is seeking to protect the
Companys ability to use its net operating losses, any loss or
deduction attributable to a net unrealized built-in loss and
other tax attributes (collectively, Tax Benefits). The Company
views its Tax Benefits as highly valuable assets of the Company
that are likely to inure to the benefit of the Company and its
stockholders. However, if the Company experiences an ownership
change, as defined in Section 382 of the Internal Revenue Code
(the Code), its ability to use the Tax Benefits could be
substantially limited, and the timing of the usage of the Tax
Benefits could be substantially delayed, which could
significantly impair the value of the Tax Benefits. Generally, an
ownership change occurs if the percentage of the Companys stock
owned by one or more five percent stockholders increases by more
than 50 percentage points over the lowest percentage of stock
owned by such stockholders at any time during the prior
three-year period or, if sooner, since the last ownership change
experienced by the Company. The Plan is intended to deter
acquisitions of 4.99% or more of the outstanding Common Shares by
any person without the approval of the Board. This would protect
the Tax Benefits because changes in ownership by a person owning
less than 4.99% of the Common Shares are not included in the
calculation of ownership change for purposes of Section 382 of
the Code. The Board believes that it is in the best interests of
the Company and its stockholders that the Company provide for the
protection of the Tax Benefits by adopting the Plan.
The following is a summary of the terms of the Plan. The summary
does not purport to be complete and is qualified in its entirety
by reference to the Plan, a copy of which is attached as Exhibit
4.1 and incorporated herein by reference.
Distribution and Transfer of Rights; Rights Certificates
The Board has declared a dividend of one Right for each
outstanding Common Share. Prior to the Distribution Date referred
to below:
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the Rights will be evidenced by and trade with the certificates for the Common Shares (or, with respect to any uncertificated Common Shares registered in book entry form, by notation in book entry), and no separate rights certificates will be distributed; |
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new Common Shares certificates issued after the Record Date will contain a legend incorporating the Plan by reference (for uncertificated Common Shares registered in book entry form, this legend will be contained in a notation in book entry); and |
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the surrender for transfer of any certificates for Common Shares (or the surrender for transfer of any uncertificated Common Shares registered in book entry form) will also constitute the transfer of the Rights associated with such Common Shares. |
Rights will accompany any new Common Shares that are issued after
the Record Date.
Distribution Date
Subject to certain exceptions specified in the Plan, the Rights
will separate from the Common Shares and become exercisable
following (1)the 10th business day (or such later date as may be
determined by the Board) after the public announcement that a
person or group of affiliated or associated persons (an Acquiring
Person) has
– 2 –
acquired beneficial ownership of 4.99% or more of the Common
Shares or (2)the 10th business day (or such later date as may be
determined by the Board) after a person or group has first
published, sent, or given a tender or exchange offer that would
result in ownership by a person or group of 4.99% or more of the
Common Shares.
Any person or group of affiliated or associated persons who
beneficially owns 4.99% or more of the outstanding Common Shares
as of the announcement of the Plan will not be an Acquiring
Person, but only for so long as such person or group does not
become the beneficial owner of additional Common Shares equal to
0.10% or more of the Common Shares then outstanding.
The date on which the Rights separate from the Common Shares and
become exercisable is referred to as the Distribution Date.
After the Distribution Date, the Company will mail Rights
certificates to the Companys stockholders as of the close of
business on the Distribution Date and the Rights will become
transferable apart from the Common Shares. Thereafter, such
Rights certificates alone will represent the Rights.
Preferred Shares Purchasable Upon Exercise of Rights
After the Distribution Date, each Right will entitle the holder
to purchase, for the Exercise Price, one one-thousandth of a
Preferred Share having economic and other terms similar to that
of one Common Share. This portion of a Preferred Share is
intended to give the stockholder approximately the same dividend,
voting and liquidation rights as would one Common Share, and
should approximate the value of one Common Share.
More specifically, each one one-thousandth of a Preferred Share,
if issued, will:
| not be redeemable; |
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entitle holders to quarterly dividend payments of $0.001 per share, or an amount equal to the dividend paid on one Common Share, whichever is greater; |
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entitle holders upon liquidation either to receive $1.00 per share or an amount equal to the payment made on one Common Share, whichever is greater; |
| have the same voting power as one Common Share; and |
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entitle holders to a per share payment equal to the payment made on one Common Share if the Common Shares are exchanged via merger, consolidation or a similar transaction. |
Flip-In Trigger
If an Acquiring Person obtains beneficial ownership of 4.99% or
more of the Common Shares, except to an offer for all outstanding
Common Shares that the independent members of the Board determine
to be fair and not inadequate and to otherwise be in the best
interests of the Company and its stockholders after receiving
advice from one or more investment banking firms, then
each Right will entitle the holder thereof to purchase, for the
Exercise Price, a number of Common Shares (or, in certain
circumstances, cash, property or other securities of the Company)
having a then-current market value of twice the Exercise Price.
However, the Rights are not exercisable following the occurrence
of the foregoing event until such time as the Rights are no
longer redeemable by the Company, as further described below.
Following the occurrence of an event set forth in preceding
paragraph, all Rights that are or, under certain circumstances
specified in the Plan, were beneficially owned by an Acquiring
Person or certain of its transferees will be null and void.
Flip-Over Trigger
If, after an Acquiring Person obtains 4.99% or more of the Common
Shares, (1)the Company merges into another entity, (2)an
acquiring entity merges into the Company or (3)the Company sells
or transfers more than 50% of its assets, cash flow or earning
power, then each Right (except for Rights that have
previously been voided as set forth above) will entitle the
holder thereof to purchase, for the Exercise Price, a number of
shares of common stock of the person engaging in the transaction
having a then-current market value of twice the Exercise Price.
Redemption of the Rights
The Rights will be redeemable at the Companys option for $0.01
per Right (payable in cash, Common Shares or other consideration
deemed appropriate by the Board) at any time on or prior to the
10th business day (or such later date as may be determined by the
Board) after the public announcement that an Acquiring Person has
acquired beneficial ownership of 4.99% or more of the Common
Shares. Immediately upon the action of the Board ordering
redemption, the Rights will terminate and the only right of the
holders of the Rights will be to receive the $0.01 redemption
price. The redemption price will be adjusted if the Company
undertakes a stock dividend or a stock split.
Exchange Provision
At any time after the date on which an Acquiring Person
beneficially owns 4.99% or more of the Common Shares and prior to
the acquisition by the Acquiring Person of 50% of the Common
Shares, the Board may exchange the Rights (except for Rights that
have previously been voided as set forth above), in whole or in
part, for Common Shares at an exchange ratio of one Common Share
per Right (subject to adjustment). In certain circumstances, the
Company may elect to exchange the Rights for cash or other
securities of the Company having a value approximately equal to
one Common Share.
Expiration of the Rights
The Rights expire on the earliest of (1)5:00 p.m., New York City
time, on November 21, 2019 (unless such date is extended); (2)the
redemption or exchange of the Rights as described above; (3)
following (a) the first annual meeting of the stockholders of the
Company after the adoption of the Plan if stockholders do not
approve the Plan or (b) the first anniversary of the adoption of
the Plan if the stockholders have not otherwise approved the
Plan; (4) the repeal of Section 382 of the Code or any other
change if the Board determines that the Plan is no longer
necessary or desirable for the preservation of the Tax Benefits;
(5) the time at which the Board determines that the Tax Benefits
are fully utilized or no longer available to Section 382 of the
Code or that an ownership change to Section 382 of the Code would
not adversely impact in any material respect the time period in
which the Company could use the Tax Benefits, or materially
impair the amount of the Tax Benefits that could be used by the
Company in any particular time period for applicable tax
purposes; or (6) a determination by the Board that the Plan is no
longer in the best interests of the Company and its stockholders.
Amendment of Terms of the Plan and the Rights
The terms of the Rights and the Plan may be amended in any
respect without the consent of the holders of the Rights on or
prior to the Distribution Date. Thereafter, the terms of the
Rights and the Plan may be amended without the consent of the
holders of Rights in order to (1)cure any ambiguities, (2)shorten
or lengthen any time period to the Plan or (3)make changes that
do not adversely affect the interests of holders of the Rights.
Voting Rights; Other Stockholder Rights
The Rights will not have any voting rights. Until a Right is
exercised, the holder thereof, as such, will have no separate
rights as stockholder of the Company.
Anti-Dilution Provisions
The Board may adjust the Exercise Price, the number of Preferred
Shares issuable and the number of outstanding Rights to prevent
dilution that may occur from a stock dividend, a stock split or a
reclassification of the Preferred Shares or Common Shares.
With certain exceptions, no adjustments to the Exercise Price
will be made until the cumulative adjustments amount to at least
1% of the Exercise Price. No fractional Preferred Shares will be
issued and, in lieu thereof, an adjustment in cash will be made
based on the current market price of the Preferred Shares.
Taxes
The distribution of Rights should not be taxable for federal
income tax purposes. However, following an event that renders the
Rights exercisable or upon redemption of the Rights, stockholders
may recognize taxable income.
Item3.03 |
Material Modification to Rights of Security Holders. |
The information included in Item 1.01 and Item 5.03 of this
Current Report on Form 8-K is incorporated by reference into this
Item 3.03.
Item5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
In connection with the adoption of the Plan, on November 21,
2016, the Company filed a Certificate of Designation of Rights,
Preferences and Privileges of Series A Participating Preferred
Stock (the Certificate of Designation) with the Secretary of
State of the State of Delaware. The Certificate of Designation
sets forth the rights, powers and preferences of the Preferred
Shares.
The summary of the rights, powers and preferences of the
Preferred Shares as set forth in Item 1.01 of this Current Report
on Form8-K is incorporated by reference into this Item 5.03. A
copy of the Certificate of Designation is attached as Exhibit 3.1
and is incorporated herein by reference.
Item8.01 |
Other Events. |
On November 22, 2016, the Company also issued a press release
announcing the adoption of the Plan and the declaration of the
dividend of the Rights. A copy of the press release is attached
as Exhibit 99.1 and incorporated herein by reference.
Item9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
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| 3.1 |
Certificate of Designation of Rights, Preferences and Privileges of Series A Participating Preferred Stock |
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| 4.1 |
Tax Benefit Preservation Plan, dated as of November 21, 2016, by and between Fluidigm Corporation and Computershare Inc., as Rights Agent |
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| 99.1 |
Press Release of Fluidigm Corporation, dated November 22, 2016 |
About FLUIDIGM CORPORATION (NASDAQ:FLDM)
Fluidigm Corporation creates, manufactures and markets technologies and life science tools focused on the exploration and analysis of single cells, as well as the industrial application of genomics, based upon the Company’s core microfluidics and mass cytometry technologies. The Company operates in the development, manufacturing and commercialization of life science tools for the life science and Ag-Bio industries segment. Its products include preparatory instruments, preparatory analytical instruments, analytical instruments, integrated fluidic circuits (IFCs), and assays and reagents. Its preparatory instruments include C1 Single-Cell Auto Prep System, Access Array System, Juno System and IFCs, and Callisto System and IFC. Its analytical instruments include Biomark HD System, EP1 System and Helios/CyTOF 2 System. Its assays and reagents include Delta Gene and SNP Type Assays, and Access Array Target-Specific Primers and Targeted Sequencing Prep Primers. FLUIDIGM CORPORATION (NASDAQ:FLDM) Recent Trading Information
FLUIDIGM CORPORATION (NASDAQ:FLDM) closed its last trading session down -0.08 at 6.19 with 179,432 shares trading hands.