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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
FIRST COMMONWEALTH, INC.
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(Exact name of registrant as specified in its charter)
Delaware 75-2154228
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
444 N. Wells St., Suite 600, Chicago, Illinois 60610
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(Address of principal executives offices) (Zip Code)
If this Form relates to If this Form relates to
the registration of a the registration of a
class of securities class of securities
pursuant to Section 12(b) pursuant to Section 12(g)
of the Exchange Act and of the Exchange Act and
is effective upon filing is effective pursuant to
pursuant to General General Instruction A(d),
Instruction A(c), please please check the
check the following box. following box.
[ ] [ ]
Securities Act registration statement N/A
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file to which this form relates (If applicable)
Securities to be registered pursuant Name of Each Exchange
to Section 12(b) of the Act: on which Each Class
is to be Registered
None N/A
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Securities to be registered pursuant to
Section 12(g) of the Act:
Common Stock, $.001 par value, including
associated Preferred Stock Purchase Rights
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Title of Class
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Item 1. Description of Registrant's Securities to be Registered
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This amendment to the Company's Registration Statement on Form 8-A is
being filed for the purpose of amending the description of the Company's
Stockholder Rights Agreement as amended by the First Amendment thereto and
further amended by the Second Amendment thereto which is filed as an Exhibit
hereto. The following amends and restates the summary of the rights to purchase
shares of Series A Junior Participating Preferred Stock of the Company. In all
other respects, the Description of the Registrant's Securities previously
included in the Company's Registration Statement on Form 8-A remains in effect.
Summary of Rights to Purchase Shares of Series A Junior Participating Preferred
Stock
On October 20, 1995, the Board of Directors (the "Board") of First
Commonwealth, Inc., a Delaware corporation (the "Company"), declared a dividend
of one preferred stock purchase right (a "Right") for each outstanding share of
Common Stock, $.001 par value (the "Common Stock"), of the Company. The
dividend was paid to holders of record of the Common Stock on November 16, 1995,
the effective date of the Company's initial public offering registration
statement, file no. 33-97426 (the "Record Date"). Each Right entitles the holder
thereof (except as described below) to purchase from the Company one one-
hundredth of a share of the Series A Junior Participating Preferred Stock, $.001
par value (the "Preferred Shares"), of the Company at a price (the "Exercise
Price") of $40.00 per one one-hundredth of a Preferred Share, subject to
adjustment. The terms of the Rights are set forth in the Stockholders Rights
Agreement dated as of November 1, 1995, as amended (the "Rights Agreement")
between the Company and First Chicago Trust Company of New York, as Rights Agent
(the "Rights Agent"). Capitalized terms not defined herein have the respective
meanings specified in the Rights Agreement.
Distribution Date; Transfer of Rights
Initially, the Rights associated with the Common Stock outstanding as
of the Record Date will be evidenced solely by the stock certificates for such
Common Stock, with a copy of this Summary of Rights attached thereto. The
Rights will separate from the Common Stock upon the earlier to occur of (i) 10
Business Days after the first public announcement that any Person (other than an
Exempt Person (as hereinafter defined)) has become an Acquiring Person (as
hereinafter defined) and (ii) 10 Business Days (or such other Business Day as
may be determined by action of the Board prior to the time that any Person shall
become an Acquiring Person (as hereinafter defined) after the commencement by
any Person (other than an Exempt Person) of, or the first public announcement of
its intention to commence, a tender or exchange offer if, upon the consummation
thereof, such Person would be the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock (the
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earlier of the dates specified in clauses (i) and (ii) being hereinafter called
the "Distribution Date"). Notwithstanding the foregoing or any provision to the
contrary in the Rights Agreement, a Distribution Date shall not occur by reason
of the execution of the Merger Agreement (as such term is defined below), the
announcement of the Offer (as such term is defined in the Merger Agreement), the
consummation of the Offer, the consummation of the Merger (as such term is
defined in the Merger Agreement), or any other transaction contemplated by the
Merger Agreement. After the Distribution Date, the Rights will be evidenced
solely by separate certificates and will trade independently from the Common
Stock.
An "Acquiring Person" is any Person who or which, together with its
Affiliates and Associates, has acquired 15% or more of the shares of Common
Stock then outstanding, but does not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan or other compensation
program or arrangement of the Company or of any such Subsidiary or (iv) any
Person holding shares of Common Stock for or pursuant to the terms of any such
plan, program or arrangement (the Persons specified in clauses (i) through (iv)
being herein collectively called "Exempt Persons"). Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person," has become so
inadvertently, and such Person divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person would no longer be an
"Acquiring Person," then such Person shall not be deemed to be an "Acquiring
Person." Notwithstanding anything in the Rights Agreement to the contrary,
neither The Guardian Life Insurance Company of America, a New York corporation
("Parent"), nor any of its Affiliates or Associates, including but not limited
to, Floss Acquisition Corp., a Delaware corporation ("Sub") and wholly owned
subsidiary of Parent, is or shall be deemed to be an Acquiring Person as a
result of (i) the execution and delivery of the Agreement and Plan of Merger
(the "Merger Agreement"), dated May 19, 1999 between the Company, Parent and
Sub, or (ii) any action taken by Parent, Sub or any of their Affiliates,
Associates or shareholders in accordance with the provisions of the Merger
Agreement, including, without limitation, the initiation or consummation of the
Offer or the consumation of the Merger in accordance with the provisions of the
Merger Agreement. Notwithstanding the foregoing, upon termination of the Merger
Agreement in accordance with its terms, the preceding sentence shall become null
and void and of no further force or effect.
A "Restricted Person" is an Acquiring Person or any Affiliate or
Associate thereof.
A "Share Acquisition Date" is the first date on which there is a
public announcement, such as a press release or a filing with the Securities and
Exchange Commission, by the Company or an Acquiring Person that an Acquiring
Person has become such. The
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Second Amendment to the Rights Agreement provides that a Share Acquisition Date
shall not occur by reason of the execution of the Merger Agreement, the
announcement of the Offer, the consummation of the Offer, the consummation of
the Merger, or any other transaction contemplated by the Merger Agreement.
Notwithstanding the foregoing, upon termination of the Merger Agreement in
accordance with its terms, the preceding sentence shall become null and void and
of no further force or effect.
The Rights Agreement provides that, until the Distribution Date (or
the earlier redemption or expiration of the Rights), the Rights may be
transferred only with the associated shares of Common Stock. Until the
Distribution Date (or the earlier redemption or expiration of the Rights), stock
certificates for Common Stock issued after the Record Date, either upon transfer
of outstanding shares or original issuance of additional shares of Common Stock,
will contain a legend incorporating the Rights Agreement by reference. Until
the Distribution Date (or the earlier redemption or expiration of the Rights),
the surrender for transfer of any stock certificate for shares of Common Stock,
with or without such legend and whether or not a copy of this Summary of Rights
is attached thereto, will also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such stock certificate.
As soon as practicable after the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates") will be mailed to the
holders of record of the Common Stock as of the Close of Business on the
Distribution Date, which thereafter will constitute the sole evidence of the
Rights. Each share of Common Stock issued by the Company after the Record Date
and prior to the earlier redemption or expiration of the Rights, including any
shares of Common Stock issued by reason of the exercise of any option, warrant,
right (other than the Rights) or conversion or exchange privilege (however
evidenced) issued by the Company prior to the Distribution Date, will be
accompanied by a Right (unless the Board expressly provides to the contrary at
the time of issuance of any such option, warrant, right or privilege), and
Rights Certificates evidencing such Rights will be issued at the same time as
the stock certificates for the associated shares of Common Stock.
The Rights are not exercisable until the Distribution Date. Moreover,
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the time when the Rights may be exercised is restricted as described in the next
paragraph. The Rights will expire on the tenth anniversary of the Record Date
(the "Final Expiration Date"), unless the Final Expiration Date is extended or
unless the Rights are earlier redeemed or exchanged by the Company, in each case
as described below.
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Exercise of Rights Under Certain Circumstances
In the event that any Person becomes an Acquiring Person (a "Section
11(a)(ii) Event" as defined in the Rights Agreement), proper provision will be
made so that the registered holder of each Right (other than Rights Beneficially
Owned as described in the next sentence) will thereafter have the right to
receive, upon exercise thereof, the number of shares of Common Stock which, at
the time of the occurrence of such event, will have a market value equal to two
times the then current Exercise Price. After the occurrence of the event
described in the preceding sentence, all Rights which are, or (under certain
circumstances specified in the Rights Agreement) were, Beneficially Owned by a
Restricted Person or specified transferees therefrom will be or become void.
Under no circumstances may a Right be exercised after the occurrence of either
such event unless the Company's right to redeem the Rights (as described below)
has expired. The Second Amendment to the Rights Agreement provides that a
Section 11(a)(ii) Event shall not occur by reason of the execution of the Merger
Agreement, the announcement of the Offer, the consummation of the Offer, the
consummation of the Merger, or any other transaction contemplated by the Merger
Agreement. Notwithstanding the foregoing, upon termination of the Merger
Agreement in accordance with its terms, the preceding sentence shall become null
and void and of no further force or effect.
If, on or after the date on which any Person has become an Acquiring
Person, any of the following transactions (each a "Section 13 Event" as defined
in the Rights Agreement) occur : (i) the Company merges into or consolidates
with an Interested Stockholder (as hereinafter defined) or, unless all holders
of the Company's outstanding shares of Common Stock are treated the same,
another Person (with limited designated exceptions); (ii) an Interested
Stockholder or, unless all holders of the Company's outstanding shares of Common
Stock are treated the same, another Person (with limited designated exceptions)
merges into the Company and either (A) all or part of the outstanding shares of
Common Stock of the Company are converted into capital stock or other securities
of any other Person (or the Company), cash and/or other property or (B) such
shares remain outstanding, unconverted and unchanged; or (iii) the Company sells
or transfers 50% or more of its consolidated assets or earning power to an
Interested Stockholder (as hereinafter defined) or, unless all holders of the
Company's outstanding shares of Common Stock are treated the same, another
Person (with limited designated exceptions); proper provision will be made so
that the registered holder of each Right (other than Rights which have become
void) will thereafter have the right (the "Flip-Over Right") to receive, upon
exercise thereof, the number of common shares of the acquiror (or of another
Person affiliated therewith) which, at the time of consummation of such
transaction, will have a market value equal to two times the then current
Exercise Price. An "Interested Stockholder" is any
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Restricted Person or any Affiliate or Associate of any other Person in which
such Restricted Person has an interest, or any Person acting, directly or
indirectly, on behalf of or in concert with any such Restricted Person. The
Second Amendment to the Rights Agreement provides that a Section 13 Event shall
not occur by reason of the execution of the Merger Agreement, the announcement
of the Offer, the consummation of the Offer, the consummation of the Merger, or
any other transaction contemplated by the Merger Agreement. Notwithstanding the
foregoing, upon termination of the Merger Agreement in accordance with its
terms, the preceding sentence shall become null and void and of no further force
or effect.
The Second Amendment to the Rights Agreement provides that a
Triggering Event (which is defined in the Rights Agreement to be any Section
11(a)(ii) Event or any Section 13 Event) shall not occur by reason of the
execution of the Merger Agreement, the announcement of the Offer, the
consummation of the Offer, the consummation of the Merger, or any other
transaction contemplated by the Merger Agreement. Notwithstanding the
foregoing, upon termination of the Merger Agreement in accordance with its
terms, the preceding sentence shall become null and void and of no further force
or effect.
Adjustments to Exercise Price and Stock Purchasable Upon Exercise
The Exercise Price payable, the number and kind of shares of capital
stock issuable upon exercise of the Rights and the number of Rights outstanding
are subject to adjustment from time to time to prevent dilution (i) in the event
of a dividend payable in Preferred Shares on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to the holders of
the Preferred Shares of certain options, warrants or rights to subscribe for or
purchase Preferred Shares at a price, or securities convertible into or
exchangeable for Preferred Shares with a conversion or exchange price, less than
the then Fair Market Value of the Preferred Shares or (iii) upon the
distribution to the holders of the Preferred Shares of cash, securities,
evidences of indebtedness or other property (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or options, warrants or
rights (other than those referred to in clause (ii) above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a dividend on the Common Stock payable in shares of
Common Stock or a subdivision, combination or reclassification of the Common
Stock occurring, in any such case, prior to the Distribution Date.
With certain specified exceptions, no adjustment in the Exercise Price
will be made until the cumulative adjustments
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required equal at least 1% of the Exercise Price. The Company is not required to
issue fractional Preferred Shares (other than fractions which are multiples of
one one-hundredth of a Preferred Share), but in lieu thereof the Company would
be required to make a cash payment based on the Fair Market Value of the
Preferred Shares on the trading day immediately preceding the date of exercise.
Terms of Preferred Shares
The Preferred Shares receivable upon exercise of the Rights will not
be redeemable. Each Preferred Share will entitle the holder thereof to receive
a preferential quarterly dividend equal to 100 times the aggregate per share
amount of all cash dividends, plus 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends and other distributions (other than
in shares of Common Stock), declared on the Common Stock during such quarter,
adjusted to give effect to any dividend on the Common Stock payable in shares of
Common Stock or any subdivision, combination or reclassification of the Common
Stock (a "Dilution Event"). Each Preferred Share will entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Company, voting together as a single class with the holders of the Common
Stock and the holders of any other class of capital stock having general voting
rights, adjusted to give effect to any Dilution Event. In the event of
liquidation of the Company, the holder of each Preferred Share will be entitled
to receive a preferential liquidation payment equal to 100 times the aggregate
per share amount to be distributed to the holders of the Common Stock, adjusted
to give effect to any Dilution Event, plus an amount equal to accrued and unpaid
dividends and distributions on such Preferred Share, whether or not declared, to
the date of such payment. In the event of any merger, consolidation or other
transaction in which the outstanding shares of Common Stock of the Company are
exchanged for or converted into other capital stock, securities, cash and/or
other property, each Preferred Share will be similarly exchanged or converted
into 100 times the per share amount applicable to the Common Stock, adjusted to
give effect to any Dilution Event.
Because of the nature of the dividend, voting, liquidation and other
rights accorded to each Preferred Share, the value of the one one-hundredth of a
Preferred Share receivable upon the exercise of each Right should approximate
the value of one share of Common Stock.
Redemption of Rights
At any time prior to the earliest of (i) 10 Business Days after the
first public announcement that any Person (other than an Exempt Person) has
become an Acquiring Person, (ii) the occurrence of any transaction which permits
the exercise of the Flip-Over Right and (iii) the Final Expiration Date, the
Board may redeem the
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Rights in whole, but not in part, at the redemption price of $.01 per Right,
adjusted to give effect to any Dilution Event (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such basis and
with such conditions as the Board, in its sole discretion, may establish. After
the redemption period has expired, the Company's right of redemption may be
reinstated, under the circumstances specified in the Rights Agreement, if either
(i) the Person who became an Acquiring Person shall reduce, in one or a series
of related transactions not involving the Company or any Subsidiary or the
occurrence of any transaction which permits the exercise of the Flip-Over Right,
its Beneficial Ownership of the outstanding shares of Common Stock to less than
10% of such outstanding shares or (ii) in connection with any transaction which
permits the exercise of the Flip-Over Right, which does not involve an
Interested Stockholder and in which all holders of the Common Stock are treated
the same. Immediately after action by the Board directing the redemption of the
Rights, the option to exercise the Rights will terminate, and thereafter each
registered holder of the Rights will only be entitled to receive the Redemption
Price therefor.
Exchange of Rights
At any time after any Person has become an Acquiring Person and prior
to the time that any Person (other than an Exempt Person), together with its
Affiliates and Associates, has become the Beneficial Owner of 50% or more of the
outstanding shares of Common Stock, the Board may direct that all or any part of
the outstanding Rights (other than Rights which have become void) be exchanged
for shares of Common Stock at the exchange rate of one share of Common Stock (or
one one-hundredth of a Preferred Share or of another share of capital stock of
the Company having equivalent rights, preferences and privileges) per Right,
adjusted to give effect to any Dilution Event.
Amendment of the Rights and the Rights Agreement
Prior to the Distribution Date, the terms of the Rights and the Rights
Agreement may be supplemented or amended by the Board in any manner. From and
after the Distribution Date, the Rights may be supplemented or amended by the
Board, without the approval of the holders of the Rights, in certain respects
which do not adversely affect, as determined by the Board, the interests of such
holders; provided, however, that the Rights Agreement cannot be amended to
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lengthen (i) any time period unless such lengthening is for the benefit of the
holders of the Rights or (ii) any time period relating to when the Rights may be
redeemed if at such time the Rights are not then redeemable.
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Miscellaneous
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, as
amended, which is hereby incorporated herein by reference.
Item 2. Exhibits
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Exhibit No. Description
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1. The registrant's Second Restated Certificate of Incorporation is
hereby incorporated by reference to Exhibit 3.1 to the
registrant's Registration Statement on Form S-1, as amended (File
No. 33-97426).
2. The registrant's Amended and Restated By-Laws are hereby
incorporated by reference to Exhibit 3.2 to the registrant's
Registration Statement on Form S-1, as amended (File No. 33-
97426).
3. Stockholders Rights Agreement dated November 1, 1995 between the
registrant and First Chicago Trust Co. of New York is hereby
incorporated by reference to Exhibit 4.1 to the registrant's
Registration Statement on Form S-1, as amended (File No. 33-
97426).
4. First Amendment to Stockholder Rights Agreement dated December
15, 1998 is hereby incorporated by reference to Exhibit 4 to the
registrant's Registration Statement on Form 8-A/A, as amended
(File No. 0-27064).
5. Second Amendment to Stockholder Rights Agreement, dated May 19,
1999, is hereby incorporated by reference to Exhibit 18 to the
registrant's Solicitation/Recommendation Statement on Schedule
14D-9, as filed with the Securities and Exchange Commission on
May 25, 1999.
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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, thereunto duly authorized.
Date: May 25, 1999
FIRST COMMONWEALTH, INC.
By: /s/ David W. Mulligan
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David W. Mulligan
President
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EXHIBIT INDEX
Exhibit No. Description
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1. The registrant's Second Restated Certificate of Incorporation is
hereby incorporated by reference to Exhibit 3.1 to the
registrant's Registration Statement on Form S-1, as amended (File
No. 33-97426).
2. The registrant's Amended and Restated By-Laws are hereby
incorporated by reference to Exhibit 3.2 to the registrant's
Registration Statement on Form S-1, as amended (File No. 33-
97426).
3. Stockholders Rights Agreement dated November 1, 1995 between the
registrant and First Chicago Trust Co. of New York is hereby
incorporated by reference to Exhibit 4.1 to the registrant's
Registration Statement on Form S-1, as amended (File No. 33-
97426).
4. First Amendment to Stockholder Rights Agreement dated December
15, 1998 is hereby incorporated by reference to Exhibit 4 to the
registrant's Registration Statement on Form 8-A/A, as amended
(File No. 0-27064).
5. Second Amendment to Stockholder Rights Agreement, dated May 19,
1999, is hereby incorporated by reference to Exhibit 18 to the
registrant's Solicitation/Recommendation Statement on Schedule
14D-9, as filed with the Securities and Exchange Commission on
May 25, 1999.
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