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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR
12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
BNC MORTGAGE, INC.
(Name of registrant as specified in its charter)
DELAWARE 33-0661303
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
1063 MCGAW AVENUE, IRVINE, CALIFORNIA 92614-5532
(Address of principal executive offices) (Zip Code)
ISSUER'S TELEPHONE NUMBER: (949) 260-6000
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. [x]
Securities to be Registered Pursuant to Section 12(g) of the Act:
Title of Each Class
to be so Registered
Preferred Shares Purchase Rights
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This Amendment No. 1 to the Form 8-A of BNC Mortgage, Inc. (the "Corporation"),
dated October 22, 1998 amends Items 1 and 2 to reflect an amendment by the board
of directors of the Corporation to the Rights Agreement, with such amendment
being attached hereto as Exhibit 4.2(a).
The following information amends Items 1 and 2 of the Current Report on Form 8-A
and sets forth, in its entirety, the information as amended.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On October 13, 1998, the Board of Directors of BNC Mortgage, Inc.
(the "Corporation") declared a dividend distribution of one preferred share
purchase right (a "Right") for each outstanding share of Common Stock, $.001 par
value per share (the "Common Stock"), of the Corporation. The dividend is
payable to stockholders of record on October 26, 1998 (the "Record Date"), and
with respect to Common Stock issued thereafter until the Distribution Date (as
defined below) and, in certain circumstances, with respect to Common Stock
issued after the Distribution Date. Except as set forth below, each Right, when
it becomes exercisable, entitles the registered holder to purchase from the
Corporation one one-hundredth of a share of Series A Junior Participating
Preferred Stock, $0.001 par value per share (the "Preferred Shares"), of the
Corporation at a price of $25.00 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Corporation and U.S. Stock Transfer Corporation, as Rights Agent (the "Rights
Agent") dated as of October 13, 1998.
Initially, the Rights will be attached to all certificates
representing Common Stock then outstanding, and no separate Right Certificates
will be distributed. The Rights will separate from the Common Stock upon the
earliest to occur of (i) ten (10) days after an Acquiring Person (as defined in
the Rights Agreement) or group of affiliated or associated persons has acquired
beneficial ownership of 20% or more of the Corporation's outstanding Common
Stock (except pursuant to a Permitted Offer, as hereinafter defined); or (ii)
ten (10) Business Days (as defined in the Rights Agreement) (or such later date
as the Board may determine) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which
would result in a person or group becoming an Acquiring Person (as hereinafter
defined) (the earliest of such dates being called the "Distribution Date"). A
person or group whose acquisition of Common Stock causes a Distribution Date
pursuant to clause (i) above is an "Acquiring Person." The date that a person or
group becomes an Acquiring Person is the "Shares Acquisition Date."
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred solely 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 issuances of
Common Stock will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the
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Rights), the surrender for transfer of any certificates for Common Stock
outstanding as of the Record Date, even if such notation or a copy of the
Summary of Rights is not 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 Common Stock as of the close of business on the
Distribution Date (and to each initial record holder of certain Common Stock
issued after the Distribution Date), and such separate Right Certificates alone
will evidence the Rights.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on October 26, 2008, unless earlier redeemed by
the Corporation as described below.
If any person becomes an Acquiring Person (except pursuant to a
tender or exchange offer which is for all outstanding Common Stock at a price
and on terms which a majority of members of the Board of Directors (who are not
also officers of the Corporation or an Acquiring Person or affiliate or
associate thereof) determines to be adequate and in the best interests of the
Corporation and its shareholders, other than such Acquiring Person, its
affiliates and associates (a "Permitted Offer")), each holder of a Right will
thereafter have the right (the "Flip-In Right") to receive upon exercise the
number of shares of Common Stock (or, in certain circumstances, one
one-hundredths of a share of Preferred Shares or other securities of the
Corporation) having a market value (immediately before such triggering event)
equal to two times the exercise price of the Right. At such time, all Rights
that are beneficially owned by the Acquiring Person or any affiliate, associate
or transferee thereof will be null and void.
If at any time following the Shares Acquisition Date, (i) the
Corporation is acquired in a merger or other business combination transaction in
which the holders of all of the outstanding Common Shares immediately before the
consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (ii) more than 50% of the Corporation's assets or
earning power are sold or transferred, in either case with or to an Acquiring
Person or any affiliate or associate or any other person in which such Acquiring
Person, affiliate or associate has an interest or any person acting on behalf of
or in concert with such Acquiring Person, affiliate or associate, or, if in such
transaction all holders of Common Stock are not treated alike, then each holder
of a Right (except Rights which previously have been voided as set forth above)
shall thereafter have the right (the "Flip-Over Right") to receive, upon
exercise, common shares of the acquiring company having a value equal to two
times the exercise price of the Right. The holder of a Right will continue to
have the Flip-Over Right only to the extent that the Flip-In Right has not
previously been exercised.
The Purchase Price payable and the number of Preferred Shares, shares
of Common Stock or other securities 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
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reclassification of the Preferred Shares, (ii) upon the grant to holders of the
Preferred Shares of certain rights or warrants to subscribe for or purchase
Preferred Shares at a price (or conversion price as the case may be), less than
the then current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredth
of a Preferred Share 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, before the
Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but, if greater, will be entitled
to an aggregate dividend per share of 100 times the dividend declared per share
of Common Stock. In the event of liquidation, the holders of the Preferred
Shares will be entitled to a minimum preferential liquidation payment of $100
per share, plus accrued and unpaid dividends; thereafter, and after the holders
of the Common Stock receive a liquidation payment of $1.00 per share (as
adjusted), the holders of the Preferred Shares and the holders of the Common
Stock will share the remaining assets in the ratio of 100 to 1 (as adjusted) for
each Preferred Share and share of Common Stock so held, respectively. Finally,
in the event of any merger, consolidation or other transaction in which Common
Stock is exchanged, each Preferred Share will be entitled to receive 100 times
the amount received per share of Common Stock. The rights are protected by
customary antidilution provisions. In the event that the amount of accrued and
unpaid dividends on the Preferred Shares is equivalent to six full quarterly
dividends or more (whether or not consecutive), the holders of the Preferred
Shares shall have the right, voting as a class, to elect two directors until all
cumulative dividends on the Preferred Shares have been paid through the last
quarterly dividend payment date or until non-cumulative dividends have been paid
regularly for at least one year.
With certain exceptions, no adjustment to the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are one one-hundredth or integral multiples of one one-hundredth
of a Preferred Share, which may, at the election of the Corporation, be
evidenced by depository receipts) and in lieu thereof, a payment in cash will be
made based on the market price of the Preferred Shares on the last Trading Day
(as defined in the Rights Agreement) before the date of exercise.
At any time before the earlier to occur of (i) a person becoming an
Acquiring Person, (ii) the expiration of the Rights, or (iii) in certain
circumstances, after the Shares Acquisition Date, the Corporation may redeem all
but not less than all of the Rights at a price of $.0001 per Right (the
"Redemption Price") which redemption shall be effective upon the action of the
Board of
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Directors.
All of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Corporation before the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, defect or inconsistency, to make changes
which do not adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or, subject to certain limitations, to
shorten or lengthen any time period under the Rights Agreement.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
October 22, 1998. A copy of the Rights Agreement is available free of charge
from the Corporation. This summary description of the Rights does not purport to
be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
The Rights Agreement is attached hereto as an exhibit and
incorporated herein by reference. The foregoing description of the Rights is
qualified by reference to such exhibit.
Item 2. Exhibits.
3.1* Certificate of Incorporation of the Registrant (incorporated by
reference to the corresponding exhibit number to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-38651),
filed with the Securities and Exchange Commission on October 24,
1997).
4.2* Rights Agreement, dated October 13, 1998 between the Registrant and
U.S. Stock Transfer Corporation.
4.2(a) Amendment No. 1 to Rights Agreement dated December 16, 1998 between
the Registrant and U.S. Stock Transfer Corporation.
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* Incorporated by reference to the corresponding exhibit number to the
Registrant's Registration Statement on Form 8-A (File No. 000-23725)
as filed with the Securities and Exchange Commission on October 22,
1998.
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SIGNATURES
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 hereunto duly authorized.
Date: December 29, 1998 BNC MORTGAGE, INC.
BY: /s/ KELLY MONAHAN
-------------------------
Kelly Monahan
President and Chief
Financial Officer
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
3.1* Certificate of Incorporation of the Registrant (incorporated by
reference to the corresponding exhibit number to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-38651),
filed with the Securities and Exchange Commission on October 24,
1997).
4.2* Rights Agreement, dated October 13, 1998 between the Registrant and
U.S. Stock Transfer Corporation.
4.2(a) Amendment No. 1 to Rights Agreement dated December 16, 1998 between
the Registrant and U.S. Stock Transfer Corporation.
</TABLE>
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* Incorporated by reference to the corresponding exhibit number to the
Registrant's Registration Statement on Form 8-A (File No. 000-23725)
as filed with the Securities and Exchange Commission on October 22,
1998.
<PAGE> 1
EXHIBIT 4.2(a)
AMENDMENT NO. 1 TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1, dated as of December 16, 1998 (the "Amendment"),
to the Rights Agreement (the "Rights Agreement"), dated as of October 13, 1998
between BNC Mortgage, Inc. (the "Company") and U.S. Stock Transfer Corporation
(the "Rights Agent").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend certain
provisions of the Rights Agreement in accordance with the terms of Section 27;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
1. The Rights Agreement is hereby amended by deleting the text of
Section 1(a) and replacing it with the following:
"Acquiring Person" shall mean any Person (as defined herein) who or
which, together with all Affiliates and Associates (as defined herein)
of such Person, shall be the Beneficial Owner (as defined herein) of
20% or more of the then outstanding Common Shares (other than as a
result of a Permitted Offer (as defined herein)) or was such a
Beneficial Owner at any time after the date hereof, whether or not such
Person continues to be the Beneficial Owner of 20% or more of the then
outstanding Common Shares. Notwithstanding the foregoing, (A) the term
"Acquiring Person" shall not include (i) the Corporation, (ii) any
Subsidiary of the Corporation, (iii) any employee benefit plan of the
Corporation or any Subsidiary of the Corporation, (iv) any Person
organized, appointed or established by the Corporation for or pursuant
to the terms of any such plan, or (v) any Person, who or which together
with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 20% or more of the then outstanding Common Shares
as a result of the acquisition of Common Shares directly from the
Corporation, and (B) no Person shall be deemed to be an "Acquiring
Person" either (X) as a result of the acquisition of Common Shares by
the Corporation which, by reducing the number of Common Shares
outstanding, increases the proportional number of shares beneficially
owned by such Person, together with all Affiliates and Associates of
such Person; except that if (i) a Person would become an Acquiring
Person (but for the operation of this subclause (X) as a result of the
acquisition of Common Shares by the Corporation, and (ii) after such
share acquisition by the Corporation, such Person, or an Affiliate or
Associate of such Person, becomes the Beneficial Owner of any
additional Common Shares, then such Person shall be deemed an Acquiring
Person, or (Y) if the Board of Directors of the Corporation determines
in good faith that a Person who would otherwise be
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an "Acquiring Person," as defined pursuant to the foregoing provisions
of this Section 1(a), has become such, and such Person divests as
promptly as practicable a sufficient number of Common Shares so that
such Person would no longer be an Acquiring Person, as defined pursuant
to the foregoing provisions of this Section 1(a).
2. The Rights Agreement is hereby further amended by deleting the text
of Section 23(a)(ii) and replacing it with the following:
In addition, the Board of Directors of the Corporation may, at its
option, at any time following the occurrence of a Section 11(a)(ii)
Event and the expiration of any period during which the holder of
Rights may exercise the rights under Section 11(a)(ii) but before any
Section 13 Event, redeem all but not less than all of the then
outstanding Rights at the Redemption Price (x) in connection with any
merger, consolidation or sale or other transfer (in one transaction or
in a series of related transactions) of assets or earning power
aggregating 50% or more of the earning power of the Corporation and its
subsidiaries (taken as a whole) in which all holders of Common Shares
are treated alike and not involving (other than as a holder of Common
Shares being treated like all other such holders) an Interested
Stockholder or (y)(aa) if and for so long as the Acquiring Person is
not thereafter the Beneficial Owner of 20% of the Common Shares, and
(bb) at the time of redemption no other Persons are Acquiring Persons.
3. The Rights Agreement is hereby further amended by deleting the
second sentence of Section 24(a) and replacing it with the following:
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other
than the Corporation, any Subsidiary of the Corporation, any employee
benefit plan of the Corporation or any such Subsidiary, or any entity
holding Common Shares for or pursuant to the terms of any such a plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 20% or more of the Common Shares then outstanding.
4. The Rights Agreement is hereby further amendment by deleting the
second sentence of the second paragraph of Exhibit C to the Rights Agreement and
replacing it with the following:
The Rights will separate from the Common Stock upon the earliest to
occur of (i) ten (10) days after an Acquiring Person (as defined in the
Rights Agreement) or group of affiliated or associated persons has
acquired beneficial ownership of 20% or more of the Corporation's
outstanding Common Stock (except pursuant to a Permitted Offer, as
hereinafter defined); or (ii) ten (10) Business Days (as defined in the
Rights Agreement) (or such later date as the Board may determine)
following the commencement of, or announcement of
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an intention to make, a tender offer or exchange offer the consummation
of which would result in a person or group becoming an Acquiring Person
(as hereinafter defined) (the earliest of such dates being called the
"Distribution Date").
This Amendment may be executed in any number of counterparts, and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the date first written above.
BNC MORTGAGE, INC.
By: /s/ KELLY W. MONAHAN
-------------------------------------
Kelly W. Monahan
President and Chief Financial Officer
Attest:
/s/ EVAN R. BUCKLEY
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Evan R. Buckley
Secretary
U.S. STOCK TRANSFER CORPORATION
By: /s/ ENRIQUE ARTAZA
-------------------------------------
Enrique Artaza
Senior Vice President
Attest:
/s/ SYED A. HUSSAINI
- -------------------------
Syed A. Hussaini
Assistant Vice President
