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As filed with the Securities and Exchange Commission on May 12, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10/A NO. 4
(POST-EFFECTIVE AMENDMENT NO. 2)
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
MIDAS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 36-4180556
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
225 NORTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60611
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (312) 565-7500
Securities to be registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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Common Stock, $.001 par value New York Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
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ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Item 11 is hereby amended and restated in its entirety as follows:
DESCRIPTION OF CAPITAL STOCK OF MIDAS
THE FOLLOWING SUMMARY DESCRIPTION OF THE CAPITAL STOCK OF MIDAS IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE CERTIFICATE OF INCORPORATION OF
MIDAS (THE "CERTIFICATE OF INCORPORATION") AND THE BY-LAWS OF MIDAS (THE
"BY-LAWS"), WHICH ARE FILED AS EXHIBITS TO THIS REGISTRATION STATEMENT. SEE
"AVAILABLE INFORMATION."
AUTHORIZED CAPITAL STOCK
The authorized capital stock of Midas, Inc. ("Midas") consists of
100,000,000 shares of common stock, par value $.001 per share ("Common
Stock"), and 20,000,000 shares of preferred stock, par value $.001 per share
("Preferred Stock").
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held on
all matters submitted to a vote of shareholders, including elections of
directors, and except as otherwise required by law or as may be applicable to
any series of Preferred Stock, the holders of Common Stock possess all voting
power of Midas. Holders of Common Stock do not have cumulative voting rights
in the election of directors and do not have preemptive, subscription,
redemption, sinking fund or conversion rights. Subject to preferences that
may be applicable to holders of any outstanding shares of Preferred Stock,
holders of Common Stock are entitled to such dividends as may be declared by
the Midas Board out of funds legally available therefor. Upon any
liquidation, dissolution or winding-up of Midas, the assets legally available
for distribution to shareholders are distributable ratably among the holders
of Common Stock at that time outstanding, subject to prior distribution
rights of creditors of Midas and to the preferential rights of any
outstanding shares of Preferred Stock.
PREFERRED STOCK
Under the Certificate of Incorporation, the Midas Board may authorize the
issuance of Preferred Stock, in one or more series, and to determine, with
respect to any such series, the designations, voting powers, preferences and
rights of such series, and such qualifications, limitations or restrictions
thereof, as the Midas Board shall determine. See "Certain Antitakeover
Effects of Certain Charter and By-Law Provisions, the Rights and Delaware
Law--Certificate of Incorporation and By-Laws." The Midas Board will
designate a series of Preferred Stock in connection with the adoption of
Midas' Rights Agreement. See "--Rights Agreements."
RIGHTS AGREEMENTS
The Midas Board has adopted a Rights Agreement (the "Rights Agreement")
between Midas and First Chicago Trust Company of New York (the "Rights
Agent") providing that one Preferred Stock Purchase Right (a "Right") will be
associated with with each share of Common Stock.
Each Right enables the registered holder to purchase from Midas one
one-hundredth of a share of Series A Junior Participating Preferred Stock of
Midas (a "Preferred Share") at a price of $150 per one one-hundredth of a
Preferred Share (the "Purchase Price"), subject to adjustment. The terms of
the Rights are set forth in the Rights Agreement.
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THE DESCRIPTION SET FORTH BELOW IS INTENDED AS A SUMMARY ONLY AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE RIGHTS AGREEMENT, WHICH IS
FILED AS AN EXHIBIT TO THIS REGISTRATION STATEMENT. SEE "AVAILABLE
INFORMATION."
Until the earlier to occur of (i) ten days following a public
announcement that a person or group of affiliated or associated persons has
acquired beneficial ownership of 13.0% or more of the outstanding shares of
Common Stock (an "Acquiring Person") (excluding any holder of between 13.0%
and 15% of the Common Stock as of May 12, 1999 and any person who becomes
such a holder between May 12, 1999 and the date Amendment No. 4 to this
Registration Statement is filed with the SEC, so long as, in each case, with
limited exceptions, such holder does not become the holder of additional
shares) or (ii) ten business days (or such later date as may be determined by
action of the Midas Board prior to such time as any person or group of
affiliated or associated persons becomes an Acquiring Person) following the
commencement of a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of affiliated
or associated persons of 13.0% or more of the outstanding shares of Common
Stock (the earlier of (i) and (ii) being the "Rights Distribution Date"), the
Rights will be evidenced by the certificates or book-entry credits
representing such shares.
The Rights Agreement provides that, until the Rights Distribution Date
(or earlier redemption or expiration of the Rights), (i) the Rights may be
transferred only in connection with the transfer of shares of Common Stock,
(ii) new common stock certificates issued upon transfer or new issuance of
Common Stock will contain a notation incorporating the Rights Agreement by
reference and (iii) the transfer of any outstanding shares of Common Stock
will also constitute the transfer of the Rights associated therewith. As soon
as practicable following the Rights Distribution Date, separate certificates
or book-entry statements evidencing the Rights ("Rights Certificates") will
be mailed to holders of record of Common Stock as of the close of business on
the Rights Distribution Date and such separate Rights Certificates or
book-entry credits reflected on such statements alone will evidence the
Rights.
The Rights are not exercisable until the Rights Distribution Date. The
Rights expire on December 31, 2007 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed
or exchanged by Midas, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares 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
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase the Preferred Shares at a price, or
securities convertible into the Preferred Shares with a conversion price, less
than the then-current market price per share of the Preferred Shares, or (iii)
upon the distribution to holders of the Preferred Shares of evidences of
indebtedness, cash (other than a regular quarterly cash dividend out of the
earnings or retained earnings of Midas), assets (other than a dividend
payable in Preferred Shares) or of subscription rights or warrants (other than
those referred to 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 stock split of Common Stock or a stock dividend
on Common Stock payable in Common Stock or subdivisions, consolidations or
combinations Common Stock occurring, in any such case, prior to the Rights
Distribution Date.
Preferred Shares purchasable upon exercise of the Rights are not
redeemable. Each Preferred Share is entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but is entitled to an aggregate
dividend of 100 times the dividend declared per share of Common Stock. In the
event of liquidation, the holders of the Preferred Shares are entitled to an
aggregate payment of 100 times the payment made per share of Common Stock
(with a minimum preferential payment of $100 per share). Each Preferred Share
has 100 votes, voting together with the Common Stock. Finally, in the event
of any consolidation, merger or other transaction in which shares of Common
Stock are 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.
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Because of the nature of the dividend, liquidation and voting rights, the
value of the one one-hundredth of a Preferred Share purchasable upon exercise of
each Right should approximate the value of one share of Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring
Person (which will thereafter be void), will thereafter have the right to
receive upon exercise that number of shares of Common Stock having a market
value of two times the exercise price of the Right. In the event that Midas
is acquired in a merger or other business combination transaction or 50% or
more of its consolidated assets or earning power are sold after a person or
group of affiliated or associated persons has become an Acquiring Person,
proper provision will be made so that each holder of a Right will thereafter
have the right to receive, upon the exercise thereof at the then-current
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction will have a market
value of two times the exercise price of the Right.
At any time after any person or group of affiliated or associated persons
becomes an Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding shares of Common Stock, the
Midas Board may exchange the Rights (other than Rights owned by such person
or group which will have become void), in whole or in part, at an exchange
ratio of one share of Common Stock, or one one-hundredth of a Preferred
Share (or of a share of a class or series of Preferred Stock having
equivalent rights, preferences and privileges), per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Preferred Shares will be issued (other than fractions
which are integral multiples of one one-hundredth of a Preferred Share, which
may, at the election of Midas, be evidenced by depositary receipts) and, in
lieu thereof, an adjustment in cash will be made based on the market price of
the Preferred Shares on the last trading day prior to the date of exercise.
In general, Midas may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Midas Board) at any time until ten days following
the first public announcement that a person or group of affiliated or
associated persons has become an Acquiring Person. Immediately upon the
action of the Midas Board authorizing any redemption, the Rights will
terminate and the only right of the holders of Rights will be to receive the
redemption price.
The terms of the Rights may be amended by the Midas Board without the
consent of the holders of the Rights, including an amendment to change the
13.0% thresholds described above to be not less than 10% nor more than 20%,
except that from and after such time as any person or group of affiliated or
associated persons becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of Midas, including, without limitation, the right to
vote or to receive dividends.
CERTAIN ANTITAKEOVER EFFECTS OF CERTAIN CHARTER AND BY-LAW PROVISIONS, THE
RIGHTS AND DELAWARE LAW
CERTIFICATE OF INCORPORATION AND BY-LAWS
The Certificate of Incorporation and the By-Laws contain certain
provisions that could make more difficult the acquisition of Midas by means
of a tender offer, proxy contest or otherwise.
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THE FOLLOWING SUMMARY DESCRIPTION IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE CERTIFICATE OF INCORPORATION AND BY-LAWS OF MIDAS, WHICH ARE
FILED AS EXHIBITS TO THIS REGISTRATION STATEMENT. SEE "AVAILABLE INFORMATION."
CLASSIFIED BOARD OF DIRECTORS. The Certificate of Incorporation and
By-Laws provide that the Midas Board shall be divided into three classes of
directors, with the classes to be as nearly equal in number as possible.
The classification of directors has the effect of making it more
difficult for shareholders to change the composition of the Midas Board. At
least two annual meetings of shareholders, instead of one, will generally be
required to effect a change in a majority of the Midas Board. Such a delay
may help ensure that the directors of Midas, if confronted by a holder
attempting to force a proxy contest, a tender or exchange offer or an
extraordinary corporate transaction, would have sufficient time to review the
proposal as well as any available alternatives to the proposal and to act in
what they believe to be the best interest of Midas. The classification
provisions will apply to every election of directors, however, regardless of
whether a change in the composition of the Midas Board would be beneficial to
Midas and its shareholders and whether a majority of the shareholders of
Midas believe that such a change would be desirable.
The classification provisions could also have the effect of discouraging
a third party from initiating a proxy contest, making a tender offer or
otherwise attempting to obtain control of Midas, even though such an attempt
might be beneficial to Midas and its shareholders. The classification of the
Midas Board could thus increase the likelihood that incumbent directors will
retain their position.
NUMBER OF DIRECTORS; REMOVAL; FILLING VACANCIES. The Certificate of
Incorporation provides that, subject to any rights of holders of Preferred
Stock to elect additional directors under specific circumstances, the number
of directors will be fixed in the manner provided in the By-Laws. The By-Laws
provide that, subject to any rights of holders of Preferred Stock to elect
directors under specified circumstances, the number of directors will be
fixed from time to time exclusively pursuant to a resolution adopted by
directors constituting a majority of the total number of directors that Midas
would have if there were no vacancies on the Midas Board (the "Whole Board"),
but must consist of not less than three directors. In addition, the By-Laws
provide that, subject to any rights of holders of Preferred Stock, and unless
the Midas Board otherwise determines, any vacancies, or newly created
directorships, will be filled only by the affirmative vote of a majority of
the remaining directors, though less than a quorum. Accordingly, absent an
amendment to the By-Laws, the Midas Board could prevent any shareholder from
enlarging the Midas Board and filling the new directorships created thereby
with such shareholder's own nominees.
Under the Delaware Law, unless otherwise provided in the Certificate of
Incorporation, directors serving on a classified board may only be removed by
the shareholders for cause. In addition, the Certificate of Incorporation and
the By-Laws provide that directors may be removed only for cause and only upon
the affirmative vote of holders of at least 80% of the voting power of the then
outstanding shares of Voting Stock, voting together as a single class.
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NO SHAREHOLDER ACTION BY WRITTEN CONSENT; LIMITATIONS ON CALL OF SPECIAL
MEETINGS. The Certificate of Incorporation and the By-Laws provide that,
subject to the rights of any holders of Preferred Stock to elect additional
directors under specific circumstances, shareholder action can be taken only
at an annual or special meeting of shareholders and prohibit shareholder
action by written consent in lieu of a meeting. The By-Laws provide that,
subject to the rights of holders of any series of Preferred Stock to elect
additional directors under specific circumstances, special meetings of
shareholders can be called only by the Midas Board pursuant to a resolution
adopted by a majority of the Whole Board. Shareholders are not permitted to
call a special meeting or to require that the Midas Board call a special
meeting of shareholders. Moreover, the business permitted to be conducted at
any special meeting of shareholders is limited to the business brought before
the meeting pursuant to the notice of special meeting given by Midas.
The provisions of the Certificate of Incorporation and the By-Laws
prohibiting shareholder action by written consent may have the effect of
delaying consideration of a shareholder proposal until the next annual
meeting unless a special meeting is called by a majority of the Whole Board.
These provisions would also prevent the holders of a majority of the voting
power of the Voting Stock from unilaterally using the written consent
procedure to take shareholder action. Moreover, a shareholder could not force
shareholder consideration of a proposal over the opposition of the Midas
Board by calling a special meeting of shareholders prior to the time a
majority of the Whole Board believes such consideration to be appropriate.
ADVANCE NOTICE PROVISIONS FOR SHAREHOLDER NOMINATIONS AND SHAREHOLDER
PROPOSALS. The By-Laws establish an advance notice procedure for
shareholders to make nominations of candidates for election as directors, or
bring other business before an annual meeting of shareholders of Midas (the
"Shareholder Notice Procedure"). The Shareholder Notice Procedure provides
that only persons who are nominated by, or at the direction of, the Midas
Board, or by a shareholder who has given timely written notice to the
Secretary of Midas prior to the meeting at which directors are to be elected,
will be eligible for election as directors of Midas. The Shareholder Notice
Procedure also provides that at an annual meeting only such business may be
conducted as has been brought before the meeting by, or at the direction of,
the Midas Board or by a shareholder who has given timely written notice to
the Secretary of Midas of such shareholder's intention to bring such business
before such meeting.
Under the Shareholder Notice Procedure, notice of a shareholder
nomination or other business to be brought before an annual meeting will be
timely only if it is delivered to Midas not earlier than the close of
business on the 90th calendar day nor later than the close of business on the
70th calendar day prior to the first anniversary of the preceding year's
annual meeting (except that if the date of the annual meeting is more than 30
calendar days before or more than 70 calendar days after such anniversary
date, notice by the shareholder to be timely must be delivered to Midas not
earlier than the close of business on the 90th calendar day prior to such
annual meeting and not later than the close of business on the later of (i)
the 70th calendar day prior to such annual meeting and (ii) the 10th calendar
day after public announcement is first made by Midas of the date of such
annual meeting). Notwithstanding the foregoing, in the event that the number
of directors to be elected to the Midas Board is increased and there is no
public announcement by Midas naming all of the nominees for directors or
specifying the size of the increased Midas Board made by Midas at least 80
calendar days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice will be timely, but only with respect to
nominees for any new positions created by such increase, if it is delivered
to Midas not later than the close of business on the 10th calendar day after
such public announcement is first made. Under the Shareholder Notice
Procedure, notice of a shareholder nomination to be made at a special meeting
at which directors are to be elected will be timely only if it is delivered
to Midas not earlier than the close of business on the 90th calendar day
prior to such special meeting and not later than the close of business on the
later of (i) the 70th calendar day prior to such special meeting and (ii) the
10th calendar day after public announcement is first made by Midas of the
date of such special meeting and of the nominees proposed by the Midas Board
to be elected at such special meeting.
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Under the Shareholder Notice Procedure, a shareholder's notice proposing
to nominate a person for election as a director must contain certain
information including, without limitation, the identity and address of the
nominating shareholder, the class and number of shares of Common Stock which
are owned by such shareholder, and all information regarding the proposed
nominee that would be required to be included in a proxy statement soliciting
proxies for the proposed nominee. A shareholder's notice relating to the
conduct of business other than the nomination of directors must contain
certain information about such business and about the proposing shareholders,
including, without limitation, a brief description of the business the
shareholder proposes to bring before the meeting, the reasons for conducting
such business at such meeting, the name and address of such shareholder, the
class and number of shares of Common Stock beneficially owned by such
shareholder, and any material interest of such shareholder in the business so
proposed. If the Chairman or other officer presiding at a meeting determines
that a person was not nominated or other business was not brought before the
meeting in accordance with the Shareholder Notice Procedure, such person will
not be eligible for election as a director or such business will not be
conducted at such meeting, as the case may be.
Although the By-Laws do not give the Midas Board any power to approve or
disapprove shareholder nominations for the election of directors or proposals
for action, they may have the effect of precluding a contest for the election
of directors or the consideration of shareholder proposals if the proper
procedures are not followed, and of discouraging or deterring a third party
from conducting a solicitation of proxies to elect its own slate of directors
or to approve its own proposal, without regard to whether consideration of
such nominees or proposals might be harmful or beneficial to Midas and its
shareholders.
PREFERRED STOCK. The Certificate of Incorporation authorizes the Midas
Board to establish one or more series of Preferred Stock and to determine,
with respect to any series of Preferred Stock, the terms and rights of such
series, including (i) the designation of the series, (ii) the number of
shares of the series, which number the Midas Board may thereafter (except
where otherwise provided in the related Preferred Stock Designation) increase
or decrease (but not below the number of shares thereof then outstanding),
(iii) whether dividends, if any, will be cumulative or noncumulative and the
dividend rate of the series, (iv) the dates at which dividends, if any, will
be payable, (v) the redemption rights and price or prices, if any, for shares
of the series, (vi) the terms and amounts of any sinking fund provided for
the purchase or redemption of shares of the series, (vii) the amounts payable
on shares of the series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of Midas, (viii)
whether the shares of the series will be convertible into shares of any other
class or series, or any other security, of Midas or any other corporation,
and, if so, the specification of such other class or series or such other
security, the conversion price or prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and
all other terms and conditions upon which such conversion may be made, (ix)
restrictions on the issuance of shares of the same series or of any other
class or series, and (x) the voting rights, if any, of the holders of such
series.
The authorized shares of Preferred Stock, as well as shares of Common
Stock, will be available for issuance without further action by the
shareholders of Midas, unless such action is required by applicable law or
the rules of any stock exchange or automated quotation system on which Midas'
securities may be listed or traded. The New York Stock Exchange currently
requires shareholder approval as a prerequisite to listing shares in several
instances, including in certain situations where the present or potential
issuance of shares could result in an increase in the number of shares of
Common Stock or in the voting power outstanding of 20% or more.
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Although the Midas Board has no intention at the present time of doing
so, Midas could issue a series of Preferred Stock that could, depending on
the terms of such series, impede the completion of a merger, tender offer or
other takeover attempt. The Midas Board will make any determination to issue
such shares based on its judgment as to the best interests of Midas and its
shareholders. The Midas Board, in so acting, could issue Preferred Stock
having terms that could discourage an acquisition attempt through which an
acquirer may be able to change the composition of the Midas Board, including
a tender offer or other transaction that some, or a majority, of Midas'
shareholders might believe to be in their best interests or in which
shareholders might receive a premium for their stock over the then-current
market price of such stock.
RIGHTS TO PURCHASE SECURITIES AND OTHER PROPERTY. The Certificate of
Incorporation authorizes the Midas Board to create and issue rights entitling
the holders thereof to purchase from Midas shares of stock or other
securities of Midas or any other corporation. The times at which and terms
upon which such rights are to be issued would be determined by the Midas
Board and set forth in the contracts or other instruments that evidence such
rights. The authority of the Midas Board with respect to such rights
includes, but is not limited to, determination of (i) the initial purchase
price per share or other unit of the stock or other securities or property to
be purchased upon exercise of such rights, (ii) provisions relating to the
times at which and the circumstances under which such rights may be exercised
or sold or otherwise transferred, either together with or separately from any
other stock or other securities of Midas, (iii) provisions that adjust the
number or exercise price of such rights or amount or nature of the stock or
other securities or property receivable upon exercise of such rights in the
event of a combination, split or recapitalization of any stock of Midas, a
change in ownership of Midas' stock or other securities or a reorganization,
merger, consolidation, sale of assets or other occurrence relating to Midas
or any stock of Midas, and provisions restricting the ability of Midas to
enter into any such transaction absent an assumption by the other party or
parties thereto of the obligations of Midas under such rights, (iv)
provisions that deny the holder of a specified percentage of the outstanding
stock or other securities of Midas the right to exercise such rights and/or
cause such rights held by such holder to become void, (v) provisions that
permit Midas to redeem or exchange such rights, and (vi) the appointment of
the rights agent with respect to such rights. This provision is intended to
confirm the Midas Board authority to issue rights to purchase shares of stock
or other securities of such Company or any other corporation. See
"Description of Capital Stock of Midas--Rights Agreements."
AMENDMENT OF CERTAIN PROVISIONS IN THE CERTIFICATE OF INCORPORATION AND
BY-LAWS. Under Delaware Law, the shareholders of a corporation have the
right to adopt, amend or repeal the by-laws and, with the approval of the
board of directors, the certificate of incorporation of a corporation. In
addition, under Delaware Law if the certificate of incorporation so provides,
the by-laws may be adopted, amended or repealed by the board of directors.
The Certificate of Incorporation provides that the affirmative vote of the
holders of at least 80% of the voting power of the outstanding shares of
Voting Stock, voting together as a single class, is required to amend
provisions of the Certificate of Incorporation relating to: the prohibition
of shareholder action without a meeting; the number, election and term of
directors; the removal of directors; the issuance of rights; and the
adoption, amendment or repeal of the By-Laws by the board of directors or by
the affirmative vote of the holders of at least 80% of the voting power of
the outstanding shares of Voting Stock, voting together as a single class.
The vote of the holders of a majority of the voting power of the outstanding
shares of Voting Stock is required to amend all other provisions of the
Certificate of Incorporation. The Certificate of Incorporation further
provides that the By-Laws may be amended by the Midas Board or by the
affirmative vote of the holders of at least 80% of the voting power of the
outstanding shares of Voting Stock, voting together as a single class. These
80% voting requirements will have the effect of making more difficult any
amendment by shareholders of the By-Laws or of any of the provisions of the
Certificate of Incorporation described above, even if a majority of the
shareholders of Midas believe that such amendment would be in their best
interests.
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OTHER PROVISIONS. The Certificate of Incorporation expressly authorizes
the Midas Board to take such action as it may determine to be reasonably
necessary or desirable to encourage any person or entity to enter into
negotiations with the Midas Board and management of Midas respecting any
transaction which may result in a change in control of Midas, and to contest
or oppose any such transaction which the Midas Board determines to be unfair,
abusive or otherwise undesirable to Midas, its businesses or shareholders. In
this connection, the Certificate of Incorporation specifically permits the
Midas Board to adopt plans or to issue securities of Midas (including Common
Stock or Preferred Stock, rights or debt securities), which securities may be
exchangeable or convertible into cash or other securities on such terms as
the Midas Board determines and may provide for differential and unequal
treatment of different holders or classes of holders. The existence of this
authority or the actions which may be taken by the the Midas Board pursuant
thereto may deter potential acquirers from proposing unsolicited transactions
not approved by the Midas Board and might enable the Midas Board to hinder or
frustrate such a transaction if proposed. These provisions are included in
the Certificate of Incorporation to confirm and support the authority of the
Midas Board to take the various actions authorized thereby. The Certificate
of Incorporation is also designed to enable the Midas Board to utilize such
other tactics or mechanisms as are developed in the future to carry out the
general authorization set forth therein.
THE RIGHTS
The Rights will have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire Midas on
terms not approved by the Midas Board. The Rights should not interfere with
any merger or other business combination approved by the Midas Board because
the Rights may be redeemed by Midas until the tenth day following the first
public announcement that a person or group of affiliated or associated
persons has become an Acquiring Person.
DELAWARE LAW
Section 203 of the Delaware Law provides that, subject to certain exceptions
specified therein, a corporation shall not engage in any business combination
with any interested stockholder for a three-year period following the date that
such stockholder becomes an interested stockholder unless (i) prior to such
date, the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder; (ii) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding certain shares); or
(iii) on or subsequent to such date, the business combination is approved by the
board of directors of the corporation and by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the interested
stockholder. Except as specified in Section 203 of the Delaware Law, an
"interested stockholder" is defined to include (x) any person that is the owner
of 15% or more of the outstanding voting stock of the corporation, or is an
affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation, at any time within three years
immediately prior to the relevant date and (y) the affiliates and associates of
any such person.
Under certain circumstances, Section 203 of the Delaware Law makes it
more difficult for a person who would be an interested stockholder to effect
various business combinations with a corporation for a three-year period,
although the stockholders may elect to exclude a corporation from the
restrictions imposed thereunder. The Certificate of Incorporation does not
exclude Midas from the restrictions imposed under Section 203 of the Delaware
Law. The provisions of Section 203 of the Delaware Law may encourage
companies interested in acquiring Midas to negotiate in advance with the
Midas Board, since the stockholder approval requirement would be avoided if a
majority of the directors then in office approves either the business
combination or the transaction which results in the stockholder becoming an
interested stockholder.
9
<PAGE>
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS
(b) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -------------------------------------------------------------------
<S> <C>
3(i).1 Certificate of Incorporation.
3(i).2 Certificate of Amendment of the Certificate of Incorporation,
dated December 30, 1997.
3(ii) By-Laws (as amended December 31, 1997) (incorporated by reference
to Exhibit 4.4 to the Midas, Inc. Registration Statement on Form
S-8 relating to its Retirement Savings Plans (Registration No.
333-44625) (the "RSP Form S-8")).
4.1 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 4.3 to the
RSP Form S-8)).
4.2 Rights Agreement, dated as of December 31, 1997, between Midas,
Inc. and First Chicago Trust Company of New York (incorporated by
reference to Exhibit 4.5 to the RSP Form S-8).
4.3* Amendment to Rights Agreement dated as of May 12, 1999 between the
Registrant and First Chicago Trust Company of New York.
4.4 Midas' Canadian operations revolving credit agreement, dated
June 29, 1998 with the ABN-AMRO Bank (incorporated by reference to
Exhibit 4.3 to the Midas, Inc. Annual Report on Form 10-K for the
year ended December 26, 1998 (File No. 01-13409) (the "Form 10K")).
10.1 Distribution and Indemnity Agreement dated as of December 31, 1997
among Midas, Inc., Midas International Corporation and Whitman
Corporation (incorporated by reference to Exhibit 2.1 to the
Midas, Inc. Current Report on Form 8-K dated January 30, 1998 (the
"Form 8-K")).
10.2 Tax Sharing Agreement dated as of December 31, 1997 among Midas,
Inc., Midas International Corporation and Whitman Corporation
(incorporated by reference to Exhibit 2.2 to the Form 8-K).
10.3 Stock Incentive Plan (incorporated by reference to Exhibit 4.4 to
the Midas, Inc. Registration Statement on Form S-8 relating to its
Stock Incentive Plan (Registration No. 333-44797)).
10.4 Form of Option Agreement (incorporated by reference to Exhibit
10.4 to the Form 10-K).
10.5 Form of Restricted Stock Award (incorporated by reference to
Exhibit 10.5 to the Midas, Inc. Annual Report on Form 10-K for the
year ended December 20, 1997 (File No. 01-13409)(the "1997 Form
10-K")).
10.6 Form of Change in Control Agreement.
10.7 Agreement with former Chief Executive Officer (incorporated by
reference to Exhibit 10.7 to the 1997 Form 10-K).
10.8 Form of Restricted Stock Agreement and promissory note
(incorporated by reference to Exhibit 10.8 to the Form 10-K).
21 Subsidiaries of Midas, Inc. (incorporated by reference to Exhibit
21 to the Form 10-K).
</TABLE>
- ---------
* Filed herewith
10
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement on Form 10/A
No. 4 to be signed on its behalf by the undersigned, thereunto duly authorized.
MIDAS, INC.
<TABLE>
<S> <C> <C>
By: R. LEE BARCLAY
------------------------------------------
R. Lee Barclay
EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
</TABLE>
Date: May 12, 1999
11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -------------------------------------------------------------------
<S> <C>
3(i).1 Certificate of Incorporation.
3(i).2 Certificate of Amendment of the Certificate of Incorporation,
dated December 30, 1997.
3(ii) By-Laws (as amended December 31, 1997) (incorporated by reference
to Exhibit 4.4 to the Midas, Inc. Registration Statement on Form
S-8 relating to its Retirement Savings Plans (Registration No.
333-44625) (the "RSP Form S-8")).
4.1 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 4.3 to the
RSP Form S-8).
4.2 Rights Agreement, dated as of December 31, 1997, between Midas,
Inc. and First Chicago Trust Company of New York (incorporated by
reference to Exhibit 4.5 to the RSP Form S-8).
4.3* Amendment to Rights Agreement dated as of May 12, 1999 between the
Registrant and First Chicago Trust Company of New York.
4.4 Midas' Canadian operations revolving credit agreement, dated
June 29, 1998 with the ABN-AMRO Bank (incorporated by reference to
Exhibit 4.3 to the Midas, Inc. Annual Report on Form 10-K for the
year ended December 26, 1998 (File No. 01-13409) (the "Form 10K")).
10.1 Distribution and Indemnity Agreement dated as of December 31, 1997
among Midas, Inc., Midas International Corporation and Whitman
Corporation (incorporated by reference to Exhibit 2.1 to the
Midas, Inc. Current Report on Form 8-K dated January 30, 1998 (the
"Form 8-K")).
10.2 Tax Sharing Agreement dated as of December 31, 1997 among Midas,
Inc., Midas International Corporation and Whitman Corporation
(incorporated by reference to Exhibit 2.2 to the Form 8-K).
10.3 Stock Incentive Plan (incorporated by reference to Exhibit 4.4 to
the Midas, Inc. Registration Statement on Form S-8 relating to its
Stock Incentive Plan (Registration No. 333-44797)).
10.4 Form of Option Agreement (incorporated by reference to Exhibit
10.4 to the Form 10-K).
10.5 Form of Restricted Stock Award (incorporated by reference to
Exhibit 10.5 to the Midas, Inc. Annual Report on Form 10-K for the
year ended December 20, 1997 (File No. 01-13409) (the "1997 Form
10-K")).
10.6 Form of Change in Control Agreement.
10.7 Agreement with former Chief Executive Officer (incorporated by
reference to Exhibit 10.7 to the 1997 Form 10-K).
10.8 Form of Restricted Stock Agreement and promissory note
(incorporated by reference to Exhibit 10.8 to the Form 10-K).
21 Subsidiaries of Midas, Inc. (incorporated by reference to Exhibit
21 to the Form 10-K).
</TABLE>
- ---------
* Filed herewith.
12
<PAGE>
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of May 12, 1999 (this "Amendment"), to
Rights Agreement, dated as of December 31, 1997 (the "Rights Agreement"),
between Midas, Inc., a Delaware corporation (the "Company"), and First
Chicago Trust Company of New York, a New York corporation (the "Rights
Agent").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company, at a meeting held
on May 6, 1999 and based in part on the recommendation of the Company's
financial advisors, has determined that it is advisable and in the best
interest of the Company to amend the Rights Agreement to lower the thresholds
set forth in Sections 1(a) and 3(a) from 15% to 13.0%;
WHEREAS, at the date of this Amendment, the Distribution Date has
not occurred and there is no Acquiring Person; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, the
Company and the Rights Agent are willing to amend the Rights Agreement as
hereinafter set forth and the Company and the Rights Agent have each executed
and delivered this Amendment.
-1-
<PAGE>
NOW, THEREFORE, in consideration of the Rights Agreement and the
premises and mutual agreements herein set forth, the parties hereby agree as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
restated to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 13.0% or more of the shares of Common
Stock then outstanding, but shall not include the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or
pursuant to the terms of any such plan. Notwithstanding the
foregoing, (i) no Person shall become an "Acquiring Person" as
the result of an acquisition of shares of Common Stock by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned
by such Person to 13.0% or more of the shares of Common Stock
then outstanding; PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of 13.0% or more of the shares of
Common Stock then outstanding by reason of share purchases by the
Company and shall, after such share purchases by the Company,
become the Beneficial Owner of any additional shares of Common
Stock (other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding Common Stock or pursuant
to a split or subdivision of the outstanding Common Stock), then
such Person shall be deemed to be an "Acquiring Person" and (ii)
if, as of May 12, 1999 or prior to the first public announcement
of the adoption of the First Amendment dated as of May 12, 1999
to Rights Agreement between the Company and the Rights Agent
(which, for purposes of this definition, shall include, without
limitation, the inclusion of such First Amendment to Rights
Agreement by the Company in any public filing that it shall make
with the SEC), any Person is or becomes the Beneficial Owner of
at least 13.0% but less than 15% of the shares of Common Stock
outstanding, such Person
-2-
<PAGE>
shall not be deemed to be or to become an "Acquiring Person" unless
and until such time as such Person shall, after the first public
announcement of the adoption of such First Amendment to Rights
Agreement, become the Beneficial Owner of any additional shares of
Common Stock (other than pursuant to a dividend or distribution
paid or made by the Company on the outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common
Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, such Person is not then the
Beneficial Owner of 13.0% or more of the shares of Common Stock
then outstanding. 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" (as defined pursuant to
the foregoing provisions of this paragraph (a)) has become such
inadvertently, and such Person divests as promptly as practicable
(as determined in the good faith by the Board of Directors) a
sufficient number of shares of Common Stock so that such Person
would no longer be an "Acquiring Person" (as defined pursuant to
the foregoing provisions of this paragraph (a)), then such Person
shall not be deemed to be an "Acquiring Person" for any purposes of
this Agreement."
2. Section 3(a) of the Rights Agreement is hereby amended by
replacing the reference to the percentage "15%" contained therein with a
reference to the percentage "13.0%".
3. The first sentence of the legend contained in Section 3(c) of
the Rights Agreement is hereby amended and restated to read as follows:
"This certificate also evidences and entitles the holder hereof
to certain rights as set forth in the Rights Agreement between
Midas, Inc. (the "Company") and First Chicago Trust Company of
New York (the "Rights Agent") dated as of December 31, 1997, as
amended (collectively, the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of the Company."
-3-
<PAGE>
4. The first sentence of the first paragraph appearing on page B-2
of the form of Rights Certificate attached as Exhibit B to the Rights
Agreement is hereby amended by replacing the phrase "Rights Agreement, dated
as of December 31, 1997 (the" contained therein with the phrase "Rights
Agreement, dated as of December 31, 1997, as amended by the First Amendment
dated as of May 12, 1999 thereto (collectively, the".
5. The last sentence of the first paragraph of the Summary of
Rights to Purchase Preferred Stock attached as Exhibit C to the Rights
Agreement is hereby amended and restated to read as follows:
"The description and terms of the Rights are set forth in a
Rights Agreement, dated as of December 31, 1997, as amended by
the First Amendment dated as of May 12, 1999 thereto
(collectively, the "Rights Agreement"), between the Company and
First Chicago Trust Company of New York, as Rights Agent."
6. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed with in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
-4-
<PAGE>
7. This Amendment may be executed in two or more counterparts, each
of which shall for all purposes be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
8. Any capitalized term used herein without definition shall have
the meaning specified in the Rights Agreement.
9. Except as otherwise expressly set forth herein, this Amendment
shall not by implication or otherwise alter, modify, amend or in any other
manner affect any of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which are hereby
ratified and confirmed in all respects and shall continue in full force and
effect.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the day and year first above
written.
Attest: MIDAS, INC.
By: /s/ Robert H. Sorensen By: /s/ R. Lee Barclay
------------------------------ ------------------------
Robert H. Sorensen R. Lee Barclay
Vice President, Secretary Executive Vice President
and General Counsel and Chief Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ Mary E. Garcia By: /s/ Joanne Gorostiola
------------------------------ ------------------------
Mary E. Garcia Joanne Gorostiola
Customer Service Officer Assistant Vice President
-6-
