SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A12G
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Mpower Communications Corp.
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(Exact name of Registrant as specified in its charter)
Nevada 88-0360042
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
175 Sully's Trail, Suite 300, Pittsford, NY 14534
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(Address of principal executive offices) (Zip Code)
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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If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Series E Preferred Stock
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(Title of class)
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Item 1. Description of Registrants Securities to Be Registered.
On December 11, 2000, the Board of Directors of Mpower
Communications Corp. (the "Company") declared a distribution of one Right for
each outstanding share of Common Stock, par value $.001 per share (the "Company
Common Stock"), to stockholders of record at the close of business on December
11, 2000 and for each share of Company Common Stock issued (including shares
distributed from Treasury) by the Company thereafter and prior to the
Distribution Date. Each Right entitles the registered holder, subject to the
terms of the Rights Agreement, to purchase from the Company one one-thousandth
of a share (a "Unit") of Series E Preferred Stock, par value $.001 per share
(the "Preferred Stock"), at a Purchase Price of $36.50 per Unit, subject to
adjustment. The Purchase Price is payable in cash or by certified or bank check
or money order payable to the order of the Company, or by wire transfer of
immediately available funds to the account of the Company. The description and
terms of the Rights are set forth in a Rights Agreement between the Company and
Continental Stock Transfer & Trust Company as Rights Agent (the "Rights
Agreement").
Initially, the Rights will attach to all certificates
representing shares of outstanding Company Common Stock, and no separate Rights
Certificates will be distributed. The Rights will separate from the Company
Common Stock and the Distribution Date will occur upon the earlier of (i) 10
days following a public announcement (the date of such announcement being the
"Stock Acquisition Date") that a person or group of affiliated or associated
persons (other than the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or such Subsidiary) (an "Acquiring Person") has
acquired, obtained the right to acquire or otherwise obtained beneficial
ownership of 15 % or more of the then outstanding shares of Company Common
Stock, and (ii) 10 business days (or such later date as may be determined by
action of the Board of Directors prior to such time as any person becomes an
Acquiring Person) following the commencement of a tender offer or exchange offer
that would result in a person or group beneficially owning 15% or more of the
then outstanding shares of Company Common Stock. West Highland Partners, L.P.,
West Highland Capital, Inc., Mr. Lang H. Gerhard and Estero Partners, LLC, which
collectively own in excess of 15%, may generally purchase up to an additional 1%
without causing the Rights to become exercisable. Until the Distribution Date,
(i) the Rights will be evidenced by Company Common Stock certificates and will
be transferred with and only with such Company Common Stock certificates, (ii)
new Company Common Stock certificates issued after December 11, 2000 (also
including shares distributed from Treasury) will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates representing outstanding Company Common Stock will
also constitute the transfer of the Rights associated with the Company Common
Stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on the tenth anniversary of the Rights
Agreement unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of Company Common Stock as of
the close of business on the Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights.
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In the event that (i) the Company is the surviving corporation
in a merger with an Acquiring Person and shares of Company Common Stock shall
remain outstanding, (ii) a Person becomes an Acquiring Person, (iii) an
Acquiring Person engages in one or more "self-dealing" transactions as set forth
in the Rights Agreement, or (iv) during such time as there is an Acquiring
Person, an event occurs which results in such Acquiring Person's ownership
interest being increased by more than 1% (e.g., by means of a reverse stock
split or recapitalization) (each such event being a "Section 11(a)(ii) Event"),
then, in each such case, each holder of a Right will thereafter have the right
to receive, upon exercise, Units of Preferred Stock (or, in certain
circumstances, Company Common Stock, cash, property or other securities of the
Company) having a value equal to two times the exercise price of the Right. The
exercise price is the Purchase Price multiplied by the number of Units of
Preferred Stock issuable upon exercise of a Right prior to the events described
in this paragraph. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this paragraph, all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction and the Company is not the surviving corporation (other than a
merger described in the preceding paragraph), (ii) any Person consolidates or
merges with the Company and all or part of the Company Common Stock is converted
or exchanged for securities, cash or property of any other Person or (iii) 50%
or more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon exercise, common stock
of the Acquiring Person having a value equal to two times the exercise price of
the Right.
The Purchase Price payable, and the number of Units of
Preferred Stock 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 Stock, (ii)
if holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to the
holders of the Preferred Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. The Company is not required to issue fractional Units. In lieu
thereof, an adjustment in cash may be made based on the market price of the
Preferred Stock prior to the date of exercise.
At any time until ten days following the Stock Acquisition
Date, the Company's Board of Directors may redeem the Rights in whole, but not
in part, at a price of $.0001 per Right (the "Redemption Price"), payable, at
the election of the Board, in cash or shares of Company Common Stock.
Immediately upon the action of the Company's Board of Directors ordering the
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
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The Board of Directors, at its option, may exchange each Right
for (i) one Unit of Preferred Stock or (ii) such number of Units of Preferred
Stock as will equal (x) the difference between the aggregate market price of the
number of Units of Preferred Stock to be received upon a Section 11(a)(ii) Event
and the Purchase Price divided by (y) the market price per Unit of Preferred
Stock upon the Section 11(a)(ii) Event.
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. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Units of Preferred Stock (or other consideration).
Any of the provisions of the Rights Agreement may be amended
at any time prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended 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 to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
The Units of Preferred Stock that may be acquired upon
exercise of the Rights will be nonredeemable and subordinate to any other shares
of preferred stock that may be issued by the Company.
Each Unit of Preferred Stock will have a minimum preferential
quarterly dividend rate of $.01 per Unit but will, in any event, be entitled to
a dividend equal to the per share dividend declared on the Company Common Stock.
In the event of liquidation, the holder of a Unit of Preferred
Stock will receive a preferred liquidation payment equal to the greater of $.01
per Unit and the per share amount paid in respect of a share of Company Common
Stock.
Each Unit of Preferred Stock will have one vote, voting
together with the Company Common Stock. The holders of Units of Preferred Stock,
voting as a separate class, shall be entitled to elect two directors if
dividends on the Preferred Stock are in arrears for six fiscal quarters.
In the event of any merger, consolidation or other transaction
in which shares of Company Common Stock are exchanged, each Unit of Preferred
Stock will be entitled to receive the per share amount paid in respect of each
share of Company Common Stock.
The rights of holders of the Preferred Stock to dividends,
liquidation and voting, and in the event of mergers and consolidations, are
protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend,
liquidation and voting rights, the economic value of one Unit of Preferred Stock
that may be acquired upon the exercise of each Right should approximate the
economic value of one share of Company Common Stock.
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The Rights may have certain anti-takeover effects. The Rights
will cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by the Company's Board of Directors unless the
offer is conditioned on a substantial number of Rights being acquired. However,
the Rights should not interfere with any merger or other business combination
approved by the Company's Board of Directors because the Rights may be redeemed
by the Company at $.0001 per Right at any time on or prior to the tenth day
following the Stock Acquisition Date (subject to extension by the Company's
Board of Directors). Thus, the Rights are intended to encourage persons who may
seek to acquire control of the Company to initiate such an acquisition through
negotiations with the Board of Directors. However, the effect of the Rights may
be to discourage a third party from making a partial tender offer or otherwise
attempting to obtain a substantial equity position in the equity securities of,
or seeking to obtain control of, the Company. To the extent any potential
acquirors are deterred by the Rights, the Rights may have the effect of
preserving incumbent management in office.
The Form of Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, which includes as Exhibit A the
Form of Rights Certificate, is attached hereto as Exhibit 4 and is incorporated
herein by reference. The foregoing description of the Rights does not purport to
be complete and is qualified in its entirety by reference to such Exhibit 4.
Item 2. Exhibits.
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1. Form of Rights Agreement, dated as of December 11, 2000,
between Mpower Communications Corp. and Continental Stock Transfer & Trust
Company which includes the Form of Rights Certificate as Exhibit A, the Summary
of Rights to Purchase Preferred Stock as Exhibit B and the Form of Certificate
of Designation for the Preferred Stock as Exhibit C. Pursuant to the Rights
Agreement, the Rights Certificates will not be mailed, with certain exceptions,
until after (i) 10 days following a public announcement that a person or group
of affiliated or associated persons has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding shares of
Company Common Stock or (ii) l0 business days following the commencement of, or
the announcement of the intention to commence, a tender offer that would result
in a person or group beneficially owning 15% or more of the then outstanding
shares of Company Common Stock.
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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, thereto duly authorized.
MPOWER COMMUNICATIONS CORP.
By: /s/ Russell Zuckerman
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Name: Russell Zuckerman
Title: Corporate Secretary
Date: December 15, 2000
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EXHIBIT INDEX
Exhibit
No. Description
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4 Form of Rights Agreement dated as of December 11, 2000,
between Mpower Communications Corp. and Continental Stock
Transfer & Trust Company, which includes the Form of
Rights Certificate as Exhibit A, the Summary of Rights to
Purchase Preferred Stock as Exhibit B and the Form of
Certificate of Designation of the Preferred Stock as Exhibit
C.
