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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): April 8, 1996
BIRD CORPORATION
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(Exact name of registrant as specified in its charter)
MASSACHUSETTS 0-828 04-3082903
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(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
1077 Pleasant Street, Norwood, MA 02062-6714
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(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): (617) 551-0656
NONE
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On April 8, 1996, Bird Corporation (the "Registrant"), CertainTeed
Corporation ("CertainTeed"), an indirect wholly owned subsidiary of Compagnie de
Saint-Gobain, and BI Expansion Corp. ("BI Corp."), a wholly owned subsidiary of
CertainTeed, agreed to amend their previous Agreement and Plan of Merger dated
March 15, 1996 to provide for a two-step transaction by entering into an Amended
and Restated Agreement and Plan of Merger (the "Merger Agreement").
The transaction will be effected by a first step cash tender offer
(the "Tender Offer") to purchase all outstanding shares of the Registrant's
Common Stock, par value $1 per share, including the associated Common Stock
purchase rights (the "Common Shares"), at a price of $7.50 per Common Share net
to the seller in cash without interest thereon and all outstanding shares of the
Registrant's $1.85 Cumulative Convertible Preference Stock, par value $1 per
share (the "Preference Shares"), at a price of $20 plus all accrued and unpaid
dividends through the expiration of the Tender Offer per Preference Share net to
the seller in cash without interest thereon. The Tender Offer was commenced on
April 12, 1996 and will remain open until at least May 9, 1996. The Tender Offer
is conditioned upon, among other things, (i) there being validly tendered and
not withdrawn prior to the expiration of the Tender Offer such number of Common
Shares that would constitute at least 66-2/3% of all outstanding Common Shares
(determined on a fully diluted basis on the expiration date of the Tender
Offer), (ii) either (x) there being validly tendered and not withdrawn prior to
the expiration of the Tender Offer such number of Preference Shares that would
constitute at least 66-2/3% of all outstanding Preference Shares or (y) BI Corp.
having elected to require the Registrant to call for redemption all outstanding
Preference Shares in accordance with the Merger Agreement and (iii) certain
regulatory approvals. The Tender Offer is expected to be completed in the middle
of May 1996.
The second step of the transaction will be a merger of BI Corp. with
and into the Registrant (the "Merger") with the Registrant surviving the Merger
as a subsidiary of CertainTeed. In the Merger, all Common Shares and Preference
Shares not purchased in the Tender Offer or redeemed will be converted into (in
the case of Common Shares) $7.50 per Common Share and (in the case of Preference
Shares) $20 plus all accrued and unpaid dividends through the effective date of
the Merger per Preference Share, in each case in cash without interest thereon.
The Registrant's outstanding 5% Cumulative Preferred Stock, par value $100 per
share, will remain issued and outstanding upon the effectiveness of the Merger
and will be called for redemption and retirement as soon as practicable
thereafter at a price equal to $110 per share, plus all accrued and unpaid
dividends thereon as of the date of redemption and retirement. Consummation of
the Merger is subject
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to certain conditions, including approval of the Merger by the Registrant's
stockholders. Assuming consummation of the Tender Offer, the Merger is
anticipated to be completed at the end of the second quarter of 1996, following
distribution of proxy materials to the Registrant's stockholders and approval of
the Merger at a special meeting of the Registrant's stockholders.
Pursuant to the Merger Agreement, the Registrant has entered into,
with American Stock Transfer & Trust Company ("AST&T"), the Fourth Amendment to
Rights Agreement (the "Fourth Amendment") and the Fifth Amendment to Rights
Agreement (the "Fifth Amendment" and, together with the Fourth Amendment, the
"Amendments") on March 14, 1996 and April 5, 1996, respectively. The Amendments
rendered the provisions of the Rights Agreement between the Registrant and The
First National Bank of Boston (predecessor rights agent to AST&T) dated November
25, 1986 inapplicable to the Tender Offer and the Merger.
The foregoing description of the Merger Agreement, including the
transactions contemplated thereby, and the Amendments does not purport to be
complete and is qualified in its entirety by reference to the Merger Agreement,
the Fourth Amendment and the Fifth Amendment, copies of which are filed as
Exhibit 2, Exhibit 99.1 and Exhibit 99.2 hereto, respectively. A copy of the
press release issued by the Registrant and CertainTeed on April 8, 1996 relating
to the above-described transaction is filed as Exhibit 99.3 hereto. In addition,
a copy of the First Amendment to Rights Agreement dated May 24, 1990 and the
Second Amendment to Rights Agreement and Appointment of Successor Rights Agent
dated August 30, 1994 are filed as Exhibit 99.4 and Exhibit 99.5 hereto,
respectively.
On or about April 18, 1996 Bird Incorporated, a subsidiary of the
Registrant, received a grand jury subpoena issued upon application of the United
States Department of Justice, Antitrust Division, for the production of certain
documents. In addition, an executive officer and a senior manager of the
Registrant have received grand jury subpoenas requiring the production of
certain documents as well as their providing testimony before the grand jury.
The Registrant and such executive officer and senior manager are in the process
of evaluating the subpoena and intend to cooperate fully with the Department of
Justice. It appears that the subpoena relates to an investigation of the roofing
materials industry.
Pursuant to the terms of the Merger Agreement, the Registrant has
notified CertainTeed of the receipt of the above mentioned subpoenas. The
Registrant is not aware of any decision
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by CertainTeed with respect to the impact on the Merger Agreement (including the
related Tender Offer and Merger) of the receipt of the subpoenas.
A copy of the press release issued by the Registrant on April 24,
1996 relating to the receipt of the above mentioned subpoenas is filed as
Exhibit 99.6 hereto.
<TABLE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
<CAPTION>
The following exhibits are filed with this Report:
Exhibit
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<S> <C>
2 Amended and Restated Agreement and Plan of Merger dated April 8, 1996
by and among CertainTeed Corporation, BI Expansion Corp. and the
Registrant (incorporated by reference to Exhibit (c)(1) of the
Registrant's Solicitation/Recommendation Statement on Schedule 14D-9
dated April 12, 1996).
99.1 Fourth Amendment to Rights Agreement dated March 14, 1996 by and
between the Registrant and American Stock Transfer & Trust Company.
99.2 Fifth Amendment to Rights Agreement dated April 8, 1996 by and between
the Registrant and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit (c)(2) of the Registrant's
Solicitation/ Recommendation Statement on Schedule 14D-9 dated April
12, 1996).
99.3 Press Release issued by the Registrant and CertainTeed Corporation
dated April 8, 1996 (incorporated by reference to Exhibit (a)(5) of
the Registrant's Solicitation/Recommendation Statement on Schedule
14D-9 dated April 12, 1996).
99.4 First Amendment to Rights Agreement dated May 24, 1990 by and between
the Registrant and The First National Bank of Boston.
99.5 Second Amendment to Rights Agreement and Appointment of Successor
Rights Agent dated August 30, 1994 by and between the Registrant, The
First National Bank of Boston and American Stock Transfer & Trust
Company.
</TABLE>
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99.6 Press Release issued by the Registrant dated April 24, 1996.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BIRD CORPORATION
(Registrant)
By: /s/ Frank S. Anthony
----------------------------
Name: Frank S. Anthony
Title: Vice President
Date: April 24, 1996
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<TABLE>
EXHIBIT INDEX
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<CAPTION>
Exhibit No. Description
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<S> <C>
2 Amended and Restated Agreement and Plan of Merger dated
April 8, 1996 by and among CertainTeed Corporation, BI Expansion
Corp. and the Registrant (incorporated by reference to Exhibit (c)(1)
of the Registrant's Solicitation/Recommendation Statement on
Schedule 14D-9 dated April 12, 1996).
99.1 Fourth Amendment to Rights Agreement dated March 14, 1996 by and
between the Registrant and American Stock Transfer & Trust Company.
99.2 Fifth Amendment to Rights Agreement dated April 8, 1996 by and between
the Registrant and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit (c)(2) of the Registrant's
Solicitation/Recommendation Statement on Schedule 14D-9 dated April
12, 1996).
99.3 Press Release issued by the Registrant and CertainTeed Corporation
dated April 8, 1996 (incorporated by reference to Exhibit (a)(5) of
the Registrant's Solicitation/Recommendation Statement on Schedule
14D-9 dated April 12, 1996).
99.4 First Amendment to Rights Agreement dated May 24, 1990 by and between
the Registrant and The First National Bank of Boston.
99.5 Second Amendment to Rights Agreement and Appointment of Successor
Rights Agent dated August 30, 1994 by and between the Registrant, The
First National Bank of Boston and American Stock Transfer & Trust
Company.
99.6 Press Release issued by the Registrant dated April 24, 1996.
</TABLE>
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Exhibit 99.1
FOURTH AMENDMENT
to
RIGHTS AGREEMENT DATED AS OF NOVEMBER 25, 1986
----------------------------------------------
THIRD AMENDMENT (the "Amendment") dated as of March 14, 1996 to the
Rights Agreement dated as of November 25, 1986, as amended (the "Rights
Agreement"), between Bird Corporation (the "Company") and American Stock
Transfer & Trust Company (the "Rights Agent").
WITNESSETH:
WHEREAS, the Company intends to enter into an Agreement and Plan
of Merger dated as of March 15, 1996 (the "Merger Agreement") with CertainTeed
Corporation, a Delaware corporation ("CertainTeed"), and BI Expansion
Corporation, a Massachusetts corporation ("Acquisition Sub") and a wholly owned
subsidiary of CertainTeed, pursuant to which (i) Acquisition Sub will merge with
and into the Company, which will thereby become a wholly owned subsidiary of
CertainTeed, and (ii) the Company's shareholders (other than shareholders who
perfect appraisal rights) will be entitled to receive the consideration provided
in the Merger Agreement;
WHEREAS, the Company has determined that this Amendment shall
not adversely affect the interests of the holders of the Rights Certificates;
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement in accordance with Section 26 thereof and this Amendment;
WHEREAS, it is contemplated that this Amendment be executed by
the Company and the Rights Agent before the Company enters into the Merger
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereto agree as follows:
1. The Rights Agreement is hereby amended by adding the
following new section after Section 32 thereof:
"Section 33. CERTAINTEED MERGER. Notwithstanding anything
to the contrary herein, neither CertainTeed Corporation, a Delaware
corporation ("CertainTeed"), nor BI Expansion Corporation, a
Massachusetts corporation ("Acquisition Sub"), shall be
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considered an Acquiring Person under this Agreement and no Stock
Acquisition Date, Triggering Event or Distribution Date has occurred
or will occur, in any such case as a result of the approval, execution
or delivery of, or consummation of the transactions set forth in the
Agreement and Plan of Merger dated as of March 15, 1996 by and among
the Company, CertainTeed and Acquisition Sub; PROVIDED, HOWEVER, that
in the event that CertainTeed or Acquisition Sub or any affiliate of
CertainTeed becomes the Beneficial Owner of any shares of Common Stock
otherwise than pursuant to such Merger Agreement the provisions of
this sentence (other than this proviso) shall not be applicable to
such shares of Common Stock which CertainTeed or Acquisition Sub or
any affiliate of CertainTeed so otherwise became the Beneficial
Owner."
2. Exhibit A to the Rights Agreement is hereby amended by adding
", as amended" after "dated as of November 25, 1986" in the sixth line of
thereof.
3. Exhibit B to the Rights Agreement is hereby amended by adding
the following paragraph before the last paragraph thereof:
"Notwithstanding anything to the contrary in the Rights
Agreement, neither CertainTeed Corporation, a Delaware corporation
("CertainTeed"), nor BI Expansion Corporation, a Massachusetts
corporation ("Acquisition Sub"), will be considered an Acquiring
Person under the Rights Agreement Agreement and no Stock Acquisition
Date, Triggering Event or Distribution Date has occurred or will
occur, in any such case as a result of the approval, execution or
delivery of the Agreement and Plan of Merger dated as of March 15,
1996 by and among the Company, CertainTeed and Acquisition Sub;
PROVIDED, HOWEVER, that in the event that CertainTeed or Acquisition
Sub or any affiliate of CertainTeed becomes the Beneficial Owner of
any shares of Common Stock otherwise than pursuant to such Merger
Agreement the provisions of this sentence (other than this proviso)
shall not be applicable to such shares of Common Stock which
CertainTeed or Acquisition Sub or any affiliate of CertainTeed so
otherwise became the Beneficial Owner."
4. Exhibit B to the Rights Agreement is hereby amended by
deleting the last paragraph thereof and replacing it
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with the following:
"A copy of the Rights Agreement and each of the amendments
thereof have been filed with the Securities and Exchange Commission. A
copy of the Rights Agreement and each of the amendments thereof are
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."
5. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended to the date hereof.
6. This Amendment shall be deemed to be a contract made under
the laws of the Commonwealth of Massachusetts and for all purposes shall be
governed by and construed in accordance with the laws of such Commonwealth
applicable to contracts to be made and performed entirely with such
Commonwealth.
7. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of the date first
written above.
BIRD CORPORATION
By: /s/ Joseph D. Vecchiolla
-------------------------------
Name: Joseph D. Vecchiolla
Title: Chairman
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President
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Exhibit 99.4
FIRST AMENDMENT
to
RIGHTS AGREEMENT DATED AS OF NOVEMBER 25, 1986
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WHEREAS, Bird Incorporated (the "Company") entered into a Rights
Agreement dated as of November 25, 1986 (the "Rights Agreement") with The First
National Bank of Boston (the "Rights Agent");
WHEREAS, the Company is a party to an Agreement of
Reorganization and Plan of Merger dated as of April 17, 1990 (the
"Reorganization Agreement") by and among the Company, BI Sub Inc., and Bird
Corporation (the "Holding Company"), pursuant to which, effective as of May 24,
1990 (the "Effective Time"), the Company has become a wholly owned subsidiary of
the Holding Company and outstanding shares of the Company's common stock have
been converted into shares of the Holding Company's common stock on a
share-for-share basis; and
WHEREAS, Section 26 of the Rights Agreement provides that the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement; and
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement as hereinafter set forth to implement the provisions of the
Reorganization Agreement;
NOW, THEREFORE, the Rights Agreement is hereby amended as
follows:
1. At the Effective Time, the Holding Company shall assume the
Company's rights and obligations under the Rights Agreement, and from and after
the Effective Time the term "Company" as used throughout the Rights Agreement
shall mean Bird Corporation.
2. Each right to purchase common stock of Bird Incorporated
issued pursuant to the Rights Agreement shall be converted into and become a
right to purchase an equal number or amount of shares of the Holding Company's
common stock at the same exercise price and on the same terms and conditions as
applicable immediately prior to the Effective Time.
3. The Holding Company will reserve, for purposes of issuance
pursuant to the Rights Agreement, a number of shares of the Holding Company's
common stock equal to the number of
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shares of the Company's common stock reserved by the Company for such purpose
immediately prior to the Effective Time.
4. Except as provided herein, the Rights Agreement shall remain
in effect in accordance with its terms and shall not be changed as a result of
the Reorganization Agreement.
IN WITNESS WHEREOF, Bird Incorporated and the Rights Agent have
caused this Amendment to be executed by their duly authorized officers as of the
24th day of May, 1990.
BIRD INCORPORATED
By:/s/Frank S. Anthony
----------------------------
Name: Frank S. Anthony
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON, as Rights Agent
By:/s/ T. Farley, Jr.
----------------------------
Name: T. Farley, Jr.
Title: Vice President
Bird Corporation hereby assumes the Rights Agreement dated as of
November 25, 1986 and agrees to be bound by the terms of the Rights Agreement as
hereinabove amended.
BIRD CORPORATION
By:/s/ W. A. Krivsky
----------------------------
Name: W. A. Krivsky
Title: Vice President
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Exhibit 99.5
SECOND AMENDMENT to RIGHTS AGREEMENT
DATED AS OF NOVEMBER 25, 1986 and
APPOINTMENT OF SUCCESSOR RIGHTS AGENT
-------------------------------------
SECOND AMENDMENT (the "Amendment") dated as of August 30, 1994,
to the Rights Agreement dated as of November 25, 1986 as heretofore amended by a
First Amendment thereto dated as of May 24, 1990, pursuant to which Bird
Corporation (the "Company") assumed the rights and obligations of Bird
Incorporated thereunder (as so amended, the "Rights Agreement"). All capitalized
terms used herein and not otherwise defined shall have the respective meanings
assigned to such terms in the Rights Agreement.
WITNESSETH:
WHEREAS, the Company believes it is in the best interests of the
holders of the Rights issued under the Rights Agreement to appoint the transfer
agent of the Company's Common Stock to serve as successor Rights Agent under the
Rights Agreement;
WHEREAS, the Company desires to appoint The First National Bank
of Boston (the "Bank") as temporary Rights Agent under the Rights Agreement, so
that the Company and the Bank can effect an amendment to the Rights Agreement
pursuant to and in accordance with Section 26 thereof to provide that the
transfer agent shall be eligible to serve as successor Rights Agent; and
WHEREAS, American Stock Transfer & Trust Company, which is
serving as transfer agent of the Company's Common Stock, is willing to be
appointed and serve as successor Rights Agent under the Rights Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. The Company hereby appoints the Bank, and the Bank hereby
accepts appointment, as temporary Rights Agent under the Rights Agreement, for
the sole purpose of amending the Rights Agreement as hereinafter provided.
2. Section 21 of the Rights Agreement is amended by deleting the
period at the end of the fifth sentence thereof and by adding the following
phrase at the end of said fifth sentence:
provided, however, that anything in this sentence
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to the contrary notwithstanding, any corporation or other entity
serving as transfer agent of the Common Stock shall be eligible to
serve as and may be appointed as successor Rights Agent.
3. The Company hereby removes the Bank as temporary Rights Agent
pursuant to Section 21 of the Rights Agreement, such removal to be effective as
of the date hereof (but subsequent to the effectiveness of the amendment to the
Rights Agreement referred to in paragraph 2, above). Each of the Company and the
Bank waives any requirement contained in the Rights Agreement or elsewhere for
prior written notice of such removal.
4. The Company hereby releases and forever discharges the Bank, its
officers, directors, employees, agents, shareholders, successors, and assigns,
of and from all actions, causes of actions, suits, debts, controversies,
damages, judgments, executions, accounts, loss, and any and all claims, demands,
and liabilities whatsoever, in law or in equity, which it ever had, now has, or
may have in the future against the Bank, upon or by reason of any matter, cause,
act, omission or thing arising from, related to, or in connection with the
Rights Agreement or this amendment.
5. The Company hereby appoints American Stock Transfer & Trust
Company, and American Stock Transfer & Trust Company hereby accepts appointment,
as successor Rights Agent, effective as of the date of this Amendment.
6. This Amendment shall be deemed to be a contract made under the
laws of the Commonwealth of Massachusetts and for all purposes shall be governed
by and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth.
7. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed under seal as of the date first above written.
BIRD CORPORATION
By: /s/ Joseph D. Vecchiolla
------------------------------------
Name: Joseph D. Vecchiolla
Title: Chairman
THE FIRST NATIONAL BANK OF
BOSTON, as temporary Rights Agent
By: /s/ Kirsten L. Spector
------------------------------------
Name: Kirsten L. Spector
Title: Vice President
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Successor Rights
Agent under Section 5 above
By: /s/ Herbert J. Lemmer
------------------------------------
Name: Herbert J. Lemmer
Title: Vice President
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Exhibit 99.6
[LOGO] NEWS RELEASE
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Bird Corporation
1077 Pleasant Street
Norwood, MA 02062-6714
Contact: Joseph D. Vecchiolla
Chairman
Telephone: (203) 622-4880
Bird Corporation
Receives Grand Jury Subpoena
April 24, 1996 - Norwood, MA - On or about April 18, 1996 Bird Incorporated, a
subsidiary of the Company, received a grand jury subpoena issued upon
application of the United States Department of Justice, Antitrust Division, for
the production of certain documents. In addition, an executive officer and a
senior manager of the Company have received grand jury subpoenas requiring the
production of certain documents as well as their providing testimony before the
grand jury. The Company and such executive officer and senior manager are in the
process of evaluating the subpoena and intend to cooperate fully with the
Department of Justice. It appears that the subpoena relates to an investigation
of the roofing materials industry.
As previously announced in a press release dated April 8, 1996, the Company and
CertainTeed Corporation, a subsidiary of Saint-Gobain Corporation
("CertainTeed") have entered into a merger agreement providing for a two-step
transaction consisting of an all cash tender offer for the Company's Common
Stock and Preference Stock by CertainTeed followed by a merger of a subsidiary
of CertainTeed into the Company. Pursuant to the terms of such agreement, the
Company has notified CertainTeed of the receipt of the above mentioned
subpoenas. The Company is not aware of any decision by CertainTeed with respect
to the impact on the merger agreement (including the related tender offer and
merger) of the receipt of the subpoenas.
Bird Corporation, founded in 1795, is a manufacturer of asphalt shingles and
related roll roofing products serving customers in the Northeastern U. S. from
a state-of-the-art facility located in Norwood, Massachusetts.
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