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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Butler Manufacturing Company
(Exact name of registrant as specified in its charter)
Delaware 44-0188420
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(State of incorporation or organization) (IRS Employer
Identification No.)
BMA Tower, Penn Valley Park, Kansas City, Mo 64141-0917
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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 exchange on which
to be so registered each class is to be registered
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Common Stock, no par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of Securities To Be Registered.
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The capital stock of Butler Manufacturing Company (the
"Company" or "Registrant") to be registered on the New York Stock Exchange, Inc.
(the "Exchange"), is the Registrants' Common Stock, no par value. Holders of
Common Stock are entitled to one vote per share at all meetings of stockholders.
Dividends that may be declared on the Common Stock will be paid in an equal
amount to the holder of each share. No preemptive rights are conferred upon the
holders of such stock and there are no liquidation or conversion rights. Nor are
there any redemption or sinking fund provisions and there is no liability to
further calls or to assessments by the Registrant.
Copies of the Company's Restated Certificate of Incorporation (the
"Certificate") and Bylaws (the "Bylaws") are filed as Exhibit 3.1 to the
Company's report on Form 10-Q for the quarter ended March 31, 1996) and Exhibit
3.7 to the Company's report on Form 10-K for the year ended December 31, 1987).
Certain "Fair Price" and "Corporate Management" provisions of the Company's
Certificate of Incorporation and certain other provisions of the Bylaws were
designed to make the Company a less attractive target for acquisition by an
outsider who does not have the support of the Company's directors. These and
other provisions are described below and are qualified in their entirety by
reference to the actual text of the Certificate and the Bylaws. While such
provisions will not necessarily prevent take-over attempts, they should
discourage an attempt to obtain control of the Company in a transaction not
approved by the Company's Board of Directors by making it more difficult for a
third party to obtain control in a short time and impose its will on the
remaining shareholders of the Company.
CERTIFICATE OF INCORPORATION
Authorized and Unissued Stock
Article IV of the Company's Certificate of Incorporation (the
"Certificate") authorizes the Board to issue 20,000,000 shares of Common Stock.
As of September 13, 1996, 7,610,183 shares were issued and outstanding. Article
IV also authorizes the Board to issue 200,000 shares of Class 1 Preferred Stock
with such preferences and relative, participating, optional and other special
rights, including voting rights, as the Board may specify in an issuing
resolution, and to issue 10,000 shares of Class A Preferred Stock having voting
rights only in the event that four (4) consecutive payments remain unpaid.
Section 7 of Article V also provides that if the preferred stock is given
special rights to elect additional directors, to remove such directors, to fill
vacancies in their offices or to call special meetings of stockholders, then the
Classified Board and related provisions of Article V will be subject to such
rights.
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Pursuant to a Rights Agreement, as amended, the Board has
issued certain Preferred Share Purchase Rights. The rights are described in the
Company's Form 8-A relating to such rights dated October 8, 1996, which is being
filed concurrent with the filing of this registration statement.
Fair Price Provision
General. Article VI of the Certificate includes a "Fair Price
Provision" which: (a) provides that certain Business Combinations (as therein
defined) involving the Company and any Interested Stockholder (as therein
defined) may not be consummated without the affirmative vote of the holders of
at least 75% of the voting power of the then outstanding shares entitled to vote
generally in the election of directors (the "75% Stockholder Vote") unless the
transaction is approved by at least a majority of Disinterested Directors (as
therein defined) or certain minimum price and procedural requirements are met,
and (b) requires a 75% Stockholder Vote to alter, amend, or repeal, or adopt any
provision inconsistent with Article VI.
An "Interested Stockholder" is defined as anyone (other than
the Company or any subsidiary or employee benefit plan of the Company) who is
the "Beneficial owner" of at least 20% of the voting stock, or who is an
"Affiliate" of the Company and who within the two years prior to the date in
question was the Beneficial Owner of at least 20% of the voting stock, or who
has (otherwise than in a public offering) succeeded to any shares of voting
stock which were within such two years prior to the date in question
beneficially owned by an Interested Stockholder. A Beneficial owner includes
persons, directly or indirectly, owning or having the right to acquire or to
vote stock. At present, the Company is not aware of any stockholder or
stockholder group who is an "Interested Stockholder."
A "Business Combination" is defined as including the following
transactions: (a) a merger or consolidation of the Company or any subsidiary
with an Interested Stockholder (or a corporation which is, or would thereafter
be, an Affiliate of an Interested Stockholder); (b) the sale, lease, exchange,
mortgage, pledge, transfer, or other disposition by the Company or a subsidiary
of a substantial amount of assets if an Interested Stockholder (or an Affiliate
of an Interested Stockholder) is a party to the transaction; (c) the issuance or
transfer of securities of the Company or of a subsidiary to an Interested
Stockholder (or an Affiliate of an Interested Stockholder) in exchange for a
substantial amount of cash, securities, or other property (or a combination
thereof); (d) the adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of an Interested Stockholder
(or an Affiliate of an Interested Stockholder); or (e) any reclassification of
securities, recapitalization of the Company, merger or consolidation of the
Company with a subsidiary, or other transaction which has
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the effect, directly or indirectly, of increasing the proportion of the
outstanding shares of any class of equity securities of the Company or a
subsidiary directly or indirectly owned by an Interested Stockholder (or an
Affiliate of an Interested Stockholder). The phrase "substantial amount" means
property having an aggregate fair market value equal to 10% of the Company's
total shareholders' equity as of the end of the latest fiscal year for which
audited financial statements are prepared. As of December 31, 1995, 10% of total
Shareholders' Equity was $10,242,300.
A "Disinterested Director" is a member of the Company's Board
of Directors who is not affiliated with an Interested Stockholder and was a
director of the Corporation prior to the time the Interested Stockholder became
an Interested Stockholder, and any successor to such Disinterested Director who
is not affiliated with an Interested Stockholder and was recommended for
nomination or election to the Board by a majority of the Disinterested Directors
then on the Board.
Minimum Price Requirements. In a Business Combination
involving cash or other consideration being paid to the Company's stockholders,
the consideration is required to be either cash or the same type of
consideration used by the Interested Stockholder in acquiring the largest
portion of its voting stock prior to the first public announcement of the
proposed Business Combination ("Announcement Date").
In the case of payments to holders of Common Stock, the fair
market value per share of such payments must be at least equal in value to the
higher of the following: (i) the highest per share price paid by the Interested
Stockholder in acquiring any share of Common Stock, or (ii) the fair market
value per share of Common Stock (a) on the Announcement Date or (b) on the date
on which the Interested Stockholder became an Interested Stockholder
("Determination Date"), whichever is higher. The fair market value of the Common
Stock on the Announcement Date or Determination Date is the highest closing sale
price during the immediately preceding 30 calendar day period of a share of such
stock as reported by the NASDAQ National Market System, assuming the Common
Stock is then traded in the NASDAQ National Market System (which it currently
is).
In the case of payments to holders of any class or series of
voting stock (none of which are presently outstanding) other than Common Stock,
the fair market value per share of such payments would have to be at least equal
to the higher of the following: (a) the highest per share price determined with
respect to such class or series of stock in the same manner as described in
clauses (i) and (ii) of the preceding paragraphs or (b) the highest preferential
amount per share to which the holders of such class or series of voting stock
are entitled in the event of a voluntary or involuntary liquidation,
dissolution, or winding up of the Company.
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Procedural Requirements. Under the Fair Price Provision,
unless the Business Combination is approved by a majority of Disinterested
Directors, the Business Combination is subject to the 75% Stockholder Vote
requirements, even if it satisfied the Minimum Price Requirements, in each of
the following situations:
(1) if the Company, after the Interested Stockholder became an
Interested Stockholder, fails to pay full quarterly dividends on its
Preferred Stock or reduces the rate of dividends paid on its Common
Stock, unless such failure or reduction was approved by a majority of
the Disinterested Directors. This provision is designed to prevent an
Interested Stockholder from attempting to depress the market price of
the Company's stock prior to proposing a Business Combination by
reducing dividends on the Common Stock, and thereby reducing the
consideration required to be paid pursuant to the Minimum Price
Requirements of the Fair Price Provision.
(2) if the Interested Stockholder acquires any additional
shares of Voting Stock, directly from the Company or otherwise, in any
transaction subsequent to the transaction pursuant to which it became
an Interested Stockholder. This provision is intended to prevent an
Interested Stockholder from purchasing additional shares of Voting
Stock without compliance with the provisions of the Fair Price
Provision.
(3) if the Interested Stockholder receives at any time after
it became an Interested Stockholder, whether in connection with the
proposed Business Combination or otherwise, the benefit of any loans or
other financial assistance or tax advantages provided by the Company
(other than proportionately as a stockholder). This provision is
intended to deter an Interested Stockholder from self-dealing or
otherwise taking advantage of its equity position in the corporation by
using the Corporation's resources to finance the proposed Business
Combination or otherwise for its own purposes in a manner not
proportionately available to all stockholders.
Under the Fair Price Provision, in order to avoid the 75%
Stockholder Vote requirement even if the other conditions described above are
met, a proxy or information statement disclosing the terms and conditions of the
proposed Business Combination complying with the requirements of the proxy rules
promulgated under the Securities Exchange Act of 1934, as amended, must be
mailed to all stockholders of the Corporation at least 30 days prior to the
consummation of a Business Combination. This provision is intended to ensure
that the Company's stockholders will be fully informed of the terms and
conditions of the proposed Business Combination even if the Interested
Stockholder is not otherwise legally required to disclose such information to
stockholders.
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It should be noted that none of the minimum price or
procedural requirements described above apply in the case of a Business
Combination approved by a majority of the Disinterested Directors, and that, in
the absence of such approval, all of such requirements must be satisfied to
avoid the 75% Stockholder Vote requirement.
75% Vote Required to Amend or Repeal. The Fair Price Provision
also requires a 75% Stockholder Vote to amend, alter or repeal, or adopt any
provisions inconsistent with, the Fair Price Provision.
Corporate Management Provisions
General. Article V of the Certificate provides that the
affairs of the Company are managed by a Board of Directors that is divided into
three classes, each of which serves for three years, with one class being
elected each year (the "Classified Board Provisions"). The Certificate also
requires (a) advance notice of stockholder nominations for director; (b) that
vacancies on the Board be filled only by the remaining directors; (c) that
stockholder actions be taken only at a meeting; (d) that special meetings of
stockholders be called only by the Board, the President or the Chairman of the
Board; and (e) a 75% Stockholder Vote to remove directors with or without cause
or to amend, repeal or adopt any provision inconsistent with the proposed
amendments.
Management by the Board of Directors. Article V of the
Certificate expressly provides that the property, business and affairs of the
Company shall be managed by or under the direction of the Board of Directors and
prevents repeal of this Provision or the adoption of any inconsistent Provision,
without a 75% Stockholder Vote.
Classification of the Board. Section 2 of Article V of the
Certificate provides for the Board to be divided into three substantially equal
classes of directors, each of which serves staggered three-year terms, with
approximately one-third of the Board being elected each year. Section 2 of
Article III of the Bylaws provides that the total number of directors in each
class shall be fixed by the Board of Directors. Pursuant to this authority, the
Board has adopted a resolution providing that each of three classes shall
consist of three directors.
Removal of Directors and Filling Board Vacancies. Section 5 of
Article V of the Certificate provides that a director, or the entire Board of
Directors, may be removed with or without cause and only by the affirmative vote
of the holders of at least 75% of the Voting Stock. Currently, Delaware law
provides that unless the Certificate provides otherwise, the vote required for
such action is a majority of the voting stock. The Certificate also provides
that vacancies on the Board, including vacancies caused by increases in the size
of the Board, will be filled only by vote of the remaining directors.
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Thus, stockholders are not able to fill vacancies on the Board. Any director
elected to fill a vacancy will serve for the balance of the term of the director
he or she succeeds.
Nominations of Director Candidates. Section 3 of Article V of
the Certificate provides that nominations for the election of directors must be
made as provided by the Bylaws. Article III of the Bylaws provides that
nominations for the election of directors may be made by the Board of Directors
or by stockholders. Stockholders intending to nominate director candidates for
election must deliver advance written notice thereof to the Company in
accordance with the "Nominating Procedures" described in the Company's Bylaws.
Certain Stockholder Actions. Pursuant to Delaware corporation
law, unless otherwise provided in the Certificate, any action required or
permitted to be taken by stockholders of the Company may be taken without a
meeting and without a stockholder vote if a written consent setting forth the
action to be taken is signed by the holders of shares of outstanding stock
having the requisite number of votes that would be necessary to authorize such
action at a meeting of stockholders. Section 6 of Article V of the Certificate
requires that stockholder action be taken only at an annual or special meeting
of stockholders; that actions of stockholder may not be effected by written
consent; and that special meetings of stockholders may be called only by the
Chairman, the President or pursuant to a resolution adopted by a majority of the
entire Board.
Rights of Holders of Preferred Stock. Section 7 of Article V
provides that the Corporate Management Provisions are subject to the rights of
the holders of any Preferred Stock to elect additional directors to fill
vacancies in their offices, to remove any such additional directors without
cause, and to call special meetings of the Stockholders.
Increases Stockholder Vote for Amendment or Repeal of Proposed
Amendments. Article V of the Certificate requires a 75% Stockholder Vote for the
alteration, amendment, or repeal of, or the adoption of any provision
inconsistent with, the Sections of the Certificate discussed above or to Section
2 of Article III of the Bylaws (concerning the number, election and terms of
directors).
BYLAWS
Certain provisions of the Bylaws may, depending on the
circumstances, affect certain kinds of takeover proposals opposed by the Board,
including provisions which: (a) permit the Board from time to time to fix the
date of the annual meeting for some date other than the third Tuesday in April
of each year, (b) prohibit stockholder proposals at annual meetings unless
notice of the proposed business is given in writing to the Secretary of the
Company at least ninety days prior to the meeting and unless the business is
proper for stockholder action, (c) provide that special meetings of stockholders
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may be called only by the Board, the President or the Chairman of the Board, (d)
provide that in the absence of a quorum only the Chairman of the meeting may
adjourn the meeting, (e) provide that the order of business and other matters of
procedure at each meeting of stockholders shall be determined by the Chairman of
the meeting, (f) require that stockholder nominations for director be made in
writing to the Secretary of the Company at least seventy days prior to the
anniversary date of the last annual meeting or, in the case of a special meeting
for the election of directors, prior to the tenth day following the date on
which notice of such meeting is first given to stockholders, in each case in
accordance with the "Nominating Procedures" discussed in the next paragraph and
(g) provide that any vacancy on the Board may be filled only by the remaining
directors then in office, even if less than a quorum.
The Company's Bylaws establish the following "Nominating
Procedures." Nominations may be made at an annual meeting of stockholders
pursuant to the Corporation's notice of meeting or by or at the direction of the
Board of Directors. Nominations may also be made by any stockholder of the
Company who was a stockholder of record at the time of giving of notice, who is
entitled to vote at the meeting and if notice of the proposed stockholder
nominations is given to the Secretary not less than 70 nor more than 90 days
before the anniversary date of the last annual meeting for elections at annual
meetings and not less than ten days after notice to stockholders for any special
meeting for the election of Directors. The notice must contain certain
information about each proposed nominee, including his or her age, business and
residence addresses and principal occupation, the number of shares of capital
stock of the company beneficially owned by the nominee and such other
information as would be required to be included in a proxy statement. Provision
is also made for substitution of nominees should a designated nominee be unable
or unwilling to stand for election at the meeting. If the Chairman of the
meeting of stockholders determines that a nomination was not made in accordance
with these procedures, the nomination shall be void.
Item 2. Exhibits
1. All exhibits required by Instruction II to Item 2 will be
supplied to the New York Stock Exchange.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
BUTLER MANUFACTURING COMPANY
By /s/Richard O. Ballentine
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Richard O. Ballentine
Vice President, General Counsel and
Secretary
Dated: October 8, 1996
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EXHIBIT INDEX
Exhibit Number Exhibit Description
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1. All exhibits required by Instruction II to Item 2 will
be supplied to the New York Stock Exchange.
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