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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 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOREMOST CORPORATION OF AMERICA
(Exact Name of Registrant as Specified in Its Charter)
MICHIGAN 38-1863522
(State of Incorporation or Organization) (IRS Employer
Identification No.)
5600 BEECH TREE LANE
CALEDONIA, MICHIGAN 49316
(Address of Principal Executive Offices) (Zip Code)
Mailing Address: POST OFFICE BOX 2450, GRAND RAPIDS, MICHIGAN 49501
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
Common Stock, $1.00 par value New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On February 23, 1998, the Board of Directors of Foremost
Corporation of America (the "COMPANY") adopted a resolution whereby the
Company would enter into an Agreement and Plan of Merger (the "PLAN OF
MERGER") which provides for the merger of the Company into a wholly owned
subsidiary of the Company. The purpose of the Plan of Merger is to change
the Company's state of incorporation from Delaware to Michigan. The
Company's stockholders approved the Plan of Merger at the Annual Meeting of
Stockholders held on April 30, 1998.
The total number of shares of stock which the Company has the
authority to issue is 70,000,000 shares of common stock, $1.00 par value
per share ("COMMON STOCK"), and 10,000,000 shares of preferred stock,
without par value ("PREFERRED STOCK").
A. PROVISIONS APPLICABLE TO COMMON STOCK.
1. NO PREFERENCE. Except as provided by law or by the Company's
shareholder rights plan, as in effect from time to time, none of the shares
of Common Stock shall be entitled to any preferences, and each share of
Common Stock shall be equal to every other share of said Common Stock in
every respect.
2. DIVIDENDS. After payment or declaration of full dividends on all
shares having a priority over the Common Stock as to dividends, and after
making all required sinking or retirement fund payments, if any, on all
classes of Preferred Stock and on any other stock of the Company ranking as
to dividends or assets prior to the Common Stock, dividends on the shares
of Common Stock may be declared and paid, but only when and as determined
by the Board of Directors.
3. RIGHTS ON LIQUIDATION. On any liquidation, dissolution, or
winding up of the affairs of the Company, after there shall have been paid
to or set aside for the holders of all shares having priority over the
Common Stock the full preferential amounts to which they are respectively
entitled, the holders of the Common Stock shall be entitled to receive pro
rata all the remaining assets of the Company available for distribution to
its shareholders.
4. VOTING. At all meetings of shareholders of the Company, the
holders of the Common Stock shall be entitled to one vote for each share of
Common Stock held by them respectively.
B. PROVISIONS APPLICABLE TO PREFERRED STOCK.
1. Issuance in Series. The authorized shares of Preferred Stock may
be issued from time to time in one or more series, each of such series to
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have such designations, powers, preferences, and relative, participating,
optional, or other rights, and such qualifications, limitations, or
restrictions, as may be stated in a resolution or resolutions providing for
the issue of such series adopted by the Board of Directors. Authority is
hereby expressly granted to the Board of Directors, subject to the
provisions of this Section, to authorize the issuance of any authorized and
unissued shares of Preferred Stock (whether or not previously designated as
shares of a particular series, and including shares of any series issued
and thereafter acquired by the Company) as shares of one or more series of
Preferred Stock, and with respect to each series to determine and designate
by resolution or resolutions providing for the issuance of such series:
(a) The number of shares to constitute the series and the title
thereof;
(b) Whether the holders shall be entitled to cumulative or
noncumulative dividends, and, with respect to shares entitled to
cumulative dividends, the date or dates from which such dividends
shall be cumulative, the rate of the annual dividends thereon (which
may be fixed or variable and may be made dependent upon facts
ascertainable outside of the Articles of Incorporation), the dates of
payment thereof, and any other terms and conditions relating to such
dividends;
(c) Whether the shares of such series shall be redeemable, and,
if redeemable, whether redeemable for cash, property, or rights,
including securities of any other company, and whether redeemable at
the option of the holder or the Company or upon the happening of a
specified event, the limitations and restrictions with respect to such
redemption, the time or times when, the price or prices or rate or
rates at which, the adjustments with which, and the manner in which
such shares shall be redeemable, including the manner of selecting
shares of such series for redemption if less than all shares are to be
redeemed, and the terms and amount of a sinking fund, if any, provided
for the purchase or redemption of such shares;
(d) Whether the shares of such series shall be participating or
nonparticipating, and, with respect to participating shares, the date
or dates from which the dividends shall be participating, the rate of
the dividends thereon (which may be fixed or variable and may be made
dependent upon facts ascertainable outside of the Articles of
Incorporation), the dates of payment thereof, and any other terms and
conditions relating to such additional dividends;
(e) The amount per share payable to holders upon any voluntary
or involuntary liquidation, dissolution, or winding up of the affairs
of the Company;
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(f) The conversion or exchange rights, if any, of such series,
including, without limitation, the price or prices, rate or rates, and
provisions for the adjustment thereof (including provisions for
protection against the dilution or impairment of such rights), and all
other terms and conditions upon which shares constituting such series
may be converted into, or exchanged for, shares of any other class or
classes or series;
(g) The voting rights per share, if any, of each such series,
provided that in no event shall any shares of any series be entitled
to more than one vote per share; and
(h) All other rights, privileges, terms, and conditions that are
permitted by law and are not inconsistent with this Section.
All shares of Preferred Stock shall rank equally and be identical in
all respects except as to the matters specified in this Section or any
amendment thereto, or the matters permitted to be fixed by the Board of
Directors, and all shares of any one series thereof shall be identical in
every particular except as to the date, if any, from which dividends on
such shares shall accumulate.
2. Dividends. The holders of shares of each series of Preferred
Stock shall be entitled to receive, when, as, and if declared by the Board
of Directors, dividends at, but not exceeding, the dividend rate fixed for
such series by the Board of Directors pursuant to the provisions of this
Section.
3. Liquidation Preference. Upon the liquidation, dissolution, or
winding up of the affairs of the Company, whether voluntary or involuntary,
the holders of each series of Preferred Stock shall be entitled to receive
in full out of the assets of the Company available for distribution to
shareholders (including its capital) before any amount shall be paid to, or
distributed among, the holders of Common Stock, an amount or amounts fixed
by the Board of Directors pursuant to the provisions of this Section. If
the assets of the Company legally available for payment or distribution to
holders of the Preferred Stock upon the voluntary or involuntary
liquidation, dissolution, or winding up of the affairs of the Company are
insufficient to permit the payment of the full preferential amount to which
all outstanding shares of the Preferred Stock are entitled, then such
assets shall be distributed ratably upon outstanding shares of the
Preferred Stock in proportion to the full preferential amount to which each
such share shall be entitled. After payment to holders of the Preferred
Stock of the full preferential amount, holders of the Preferred Stock as
such shall have no right or claim to any of the remaining assets of the
Company. The merger or consolidation of the Company into or with any other
corporation, or the merger of any other corporation into the Company, or
the sale, lease, or conveyance of all or substantially all of the property
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or business of the Company, shall not be deemed to be a dissolution,
liquidation, or winding up for purposes of this Paragraph 3.
C. OTHER PROVISIONS AFFECTING CONTROL OF THE COMPANY
Certain provisions of the Company's Articles of Incorporation, Bylaws,
and other plans may affect control of the Company. The following provisions
may have an anti-takeover impact and may make tender offers, proxy
contests, and certain mergers more difficult to consummate.
1. PROVISIONS REGARDING THE BOARD OF DIRECTORS.
(a) CLASSIFIED BOARD. The Company's Articles of Incorporation
classify the Company's Board of Directors into three classes serving
staggered, three-year terms. Classification of the Board could have
the effect of extending the time during which the existing Board of
Directors could control the operating policies of the Company even
though opposed by the holders of a majority of the outstanding shares
of Common Stock.
(b) NOMINATION OF DIRECTORS. Under the Company's Articles of
Incorporation, all nominations for directors by shareholders are
required to be delivered to the Company in writing at least 120 days
before the date of an annual meeting of shareholders or, in the case
of a special meeting of shareholders at which a director or directors
would be elected, at least seven days after the notice of the special
meeting. A nomination that is not received before these deadlines
would not be placed on the ballot. The Board believes that advance
notice of nominations by shareholders would afford a meaningful
opportunity to consider the qualifications of the proposed nominees
and, to the extent deemed necessary or desirable by the Board of
Directors, would provide an opportunity to inform shareholders about
such qualifications. Although this nomination procedure would not
give the Board of Directors any power to approve or disapprove
shareholder nominations for the election of directors, the nomination
procedure could have the effect of precluding a nomination for the
election of directors at a particular meeting if the proper procedures
were not followed.
(c) REMOVAL OF DIRECTORS. The Company's Articles of
Incorporation do not provide for cumulative voting. Under the
Company's Articles of Incorporation, subject to the rights of any
series of Preferred Stock then outstanding, any director could be
removed from office, but only for cause, and only by shareholder
action. Generally, the vote for removal would require the affirmative
vote of a majority of shares entitled to vote at an election of
directors. "Cause" for removal could only be present in the
circumstances specified in the Company's Articles of Incorporation.
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"Cause" is present when: (i) the director whose removal is proposed
has been convicted of a felony by a court of competent jurisdiction
and such conviction is no longer subject to direct appeal; (ii) the
director has been adjudicated by a court of competent jurisdiction to
be liable for negligence or misconduct in the performance of such
person's duty to the Company in a matter of substantial importance to
the Company and such adjudication is no longer subject to a direct
appeal; (iii) the director has become mentally incompetent, whether or
not so adjudicated, which mental incompetency directly affects such
person's ability as a director of the Company; or (iv) the director's
actions or failure to act are deemed by the Board of Directors to be
in derogation of the director's duties.
Whether cause for removal exists shall be determined by an
affirmative vote of 80% of the voting power of all shares of capital
stock of the Company entitled to vote on the election of directors,
voting together as a single class or by the affirmative vote of a
majority of the total number of directors. Any action to remove a
director pursuant to (i) or (ii) above shall be taken within one year
of such conviction or adjudication. For purposes of this paragraph,
the total number of directors will not include the director who is the
subject of the removal determination, nor will such director be
entitled to vote thereon.
2. SUPERMAJORITY VOTE PROVISIONS.
(a) MICHIGAN FAIR PRICE ACT. Under the Articles of
Incorporation, the Company has elected to be governed by Chapter 7A
(Section 775 through Section 784) of the Michigan Business Corporation
Act (the "FAIR PRICE ACT"); PROVIDED, HOWEVER, that business
combinations with existing beneficial owners of more than 10% of the
outstanding shares of Common Stock of the Delaware corporate affiliate
of the Company as of February 23, 1998, or with an affiliate of such
existing beneficial owners, shall not be subject to the provisions of
the Fair Price Act. The Fair Price Act provides that a supermajority
vote of 90% of the shareholders and no less than two-thirds of the
votes of noninterested shareholders must approve a "business
combination." The Fair Price Act defines a "business combination" to
encompass any merger, consolidation, share exchange, sale of assets,
stock issue, liquidation, or reclassification of securities involving
an "interested shareholder" or certain "affiliates." An "interested
shareholder" is generally any person who owns 10% or more of the
outstanding voting shares of the corporation. An "affiliate" is a
person who directly or indirectly controls, is controlled by, or is
under common control with a specified person.
The supermajority vote required by the Fair Price Act does not
apply to business combinations that satisfy certain conditions. These
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conditions include, among others: (i) the purchase price to be paid
for the shares of the corporation in the business combination must be
at least equal to the highest of either (A) the market value of the
shares or (B) the highest per share price paid by an interested
shareholder within the preceding two-year period or in the transaction
in which the shareholder became an interested shareholder, whichever
is higher; and (ii) once becoming an interested shareholder, the
person may not become the beneficial owner of any additional shares of
the corporation except as part of the transaction which resulted in
the interested shareholder becoming an interested shareholder or by
virtue of proportionate stock splits or stock dividends.
The requirements of the Fair Price Act do not apply to business
combinations with an interested shareholder that the Board of
Directors has approved or exempted from the requirements of the Fair
Price Act by resolution before the time that the interested
shareholder first became an interested shareholder, as discussed
above.
(b) MICHIGAN CONTROL SHARE ACQUISITION ACT. Under the Articles
of Incorporation, the Company has elected to be governed by Chapter 7B
(Section 790 through Section 799) of the Michigan Business Corporation
Act (the "CONTROL SHARE ACT"); PROVIDED, HOWEVER, that existing
beneficial owners of more than 10% of the outstanding shares of Common
Stock of the Delaware corporate affiliate of the Company, as of
February 23, 1998, shall not be subject to the voting rights,
redemption, and other provisions of the Control Share Act.
The Control Share Act establishes procedures governing "control
share acquisitions." A control share acquisition is defined as an
acquisition of shares by an acquirer which, when combined with other
shares held by that person or entity, would give the acquirer voting
power at or above any of the following thresholds: 20%, 33-1/3%, or
50%. Under the Control Share Act, an acquirer may not vote "control
shares" unless the corporation's disinterested shareholders (defined
to exclude the acquiring person, officers of the target corporation
and directors of the target corporation who are also employees of the
corporation) vote to confer voting rights on the control shares. The
Control Share Act does not affect the voting rights of shares owned by
an acquiring person prior to the control share acquisition.
The Control Share Act entitles corporations to redeem control
shares from the acquiring person under certain circumstances. In
other cases, the Control Share Act confers dissenters' rights upon all
of a corporation's shareholders except the acquiring person.
Control shares acquired in a control share acquisition, with
respect to which no acquiring person statement has been filed with the
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Company, may, at any time during the period ending 60 days after the
last acquisition of control shares or the power to direct the exercise
of voting power of control shares by the acquiring person, be redeemed
by the Company at the fair value of the shares.
After an acquiring person statement has been filed and after the
meeting which the voting rights of the control shares acquired in a
control share acquisition are submitted to the shareholders, the
shares are subject to redemption by the Company at the fair value of
the shares unless the shares are accorded full voting rights by the
shareholders pursuant to Section 798 of the Michigan Business
Corporation Act.
A redemption of shares by the Company under the terms of this
Section shall be made upon election to redeem by the Board of
Directors. Written notice of the election shall be sent to the
acquiring person within seven days after the election is made. The
determination of the Board of Directors as to fair value shall be
conclusive. Payment shall be made for the control shares subject to
redemption within 30 days after the election to redeem is made at a
date and place selected by the Board of Directors. The Board of
Directors may adopt additional procedures to accomplish a redemption.
3. RESTRICTIONS ON AMENDMENTS TO ARTICLES OF INCORPORATION AND
BYLAWS OF THE COMPANY. Several provisions of the Company's Articles of
Incorporation require a greater-than-majority vote to be amended.
Specifically, Article XI provides that no amendment to the Articles of
Incorporation may alter, modify, or repeal any or all of the provisions of
Article VII (Board of Directors; Number; Classification; Vacancies;
Removal; Nominations); Article XI (Amendment of Articles of Incorporation);
Article XII (Amendment of Bylaws); Article XIII (Special Shareholder
Meetings), unless the amendment is adopted by the affirmative vote of not
less than 80% of the outstanding shares of voting stock held by
shareholders who are not interested shareholders, unless the amendment is
declared advisable by the affirmative vote of 75% of the Board of
Directors.
ITEM 2. EXHIBITS.
EXHIBIT NO. DOCUMENT
2.1 Agreement and Plan of Merger. Previously filed as an
appendix to the Company's Definitive Proxy Statement
filed on March 25, 1998, and incorporated herein by
reference.
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3.1 Articles of Incorporation of the Company. Previously
filed as an appendix to the Company's Definitive Proxy
Statement filed on March 25, 1998, and incorporated
herein by reference.
3.2 Bylaws of the Company. Previously filed as an appendix
to the Company's Definitive Proxy Statement filed on
March 25, 1998, and incorporated herein by reference.
4.1 Articles of Incorporation. See Exhibit 3.1.
4.2 Bylaws. See Exhibit 3.2.
4.3 Form of Specimen Stock Certificate.
4.4 Rights Agreement between the Company and First Chicago
Trust Company dated December 14, 1989, as amended.
Previously filed as an exhibit to the Company's
Registration Statement on Form 8-A, effective January
8, 1990, and incorporated herein by reference.
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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.
FOREMOST CORPORATION OF AMERICA
Dated: June 26, 1998 By /S/ RICHARD L. ANTONINI
Richard L. Antonini
Chairman, Chief Executive Officer and
President
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EXHIBIT INDEX
EXHIBIT DOCUMENT
2.1 Agreement and Plan of Merger. Previously filed as an
appendix to the Company's Definitive Proxy Statement filed
on March 25, 1998, and incorporated herein by reference.
3.1 Articles of Incorporation of the Company. Previously filed
as an appendix to the Company's Definitive Proxy Statement
filed on March 25, 1998, and incorporated herein by
reference.
3.2 Bylaws of the Company. Previously filed as an appendix to
the Company's Definitive Proxy Statement filed on March 25,
1998, and incorporated herein by reference.
4.1 Articles of Incorporation. See Exhibit 3.1.
4.2 Bylaws. See Exhibit 3.2.
4.3 Form of Specimen Stock Certificate.
4.4 Rights Agreement between the Company and First Chicago Trust
Company dated December 14, 1989, as amended. Previously
filed as an exhibit to the Company's Registration Statement
on Form 8-A, effective January 8, 1990, and incorporated
herein by reference.
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EXHIBIT 4.3
[WOMAN GRAPHIC]
Number Shares
**FC ** ** **
INCORPORATED UNDER THE LAWS COMMON STOCK
OF THE STATE OF MICHIGAN
FOREMOST CORPORATION OF AMERICA
THIS CERTIFICATE IS TRANSFERABLE IN THE CITY OF NEW YORK
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT IS THE OWNER OF
FULL PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $1 PER SHARE, OF
Foremost Corporation of America, transferable upon the books of the
Corporation by the holder hereof in person or by duly authorized witness upon
surrender of this Certificate properly endorsed. This Certificate is not
voted unless countersigned by and registered by the Transfer Agent and
Registrar.
[CERTIFICATE OF STOCK WATERMARK]
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/Paul D. Yared /s/Richard L. Antonini
SENIOR VICE PRESIDENT, SECRETARY AND CHAIRMAN OF THE BOARD, PRESIDENT AND
GENERAL COUNSEL CHIEF EXECUTIVE OFFICER
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The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM _____ as tenants in common UNIF GIFT MIN ACT ___Custodian____
TEN ENT _____ as tenants by the entireties (Cust) (Minor)
JT TEN _____ as joint tenants with the right under Uniform Gifts to Minors
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list
For value received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
[ ]
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
__________________________________ shares of the capital stock represented by
the within Certificate and do hereby irrevocably constitute and appoint
___________________________________________ Attorney to transfer the said
stock on the books of the within-named Corporation with full power of
substitution in the premises.
Dated ___________________________
_______________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
The Corporation will furnish to a shareholder upon request and without charge
a full statement of the designation, relative rights, preferences, and
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limitations of the shares of each class of capital stock of the Corporation
authorized to be issued, as well as the designation, relative rights,
preferences, and limitations of each series so far as the same may have been
prescribed and the authority of the board to designate and prescribe the
relative rights, preferences, and limitations of other series.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Foremost Corporation of
America (the "Company") and First Chicago Trust Company of New York (the
"Rights Agent"), dated as of December 14, 1989, as amended (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal office of the stock transfer
administration office of the Rights Agent. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Company will mail to the holder of the certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge promptly
after receipt of a written request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or held by, any Person who
is, was or becomes an Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), whether currently held by
or on behalf of such Person or by any subsequent holder, may become null and
void.
