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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
CRSS Inc.
(Exact name of registrant as specified in its charter)
Delaware 72-1121748
(State of incorporation or organization) (I.R.S. Employer Identification No.)
1177 West Loop South, Suite 900, Houston, Texas 77027
(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
registered on original Form 8-A each class is to be registered
Common Stock, par value $1.00 per share New York Stock Exchange
Note Purchase Rights New York Stock Exchange
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:
_________________________________________
(Title of class)
_________________________________________
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Registration Statement on Form 8-A/A amends and supplements the
Registration Statement on Form 8-A/A filed on March 30, 1994 by CRSS, Inc. with
respect to its common stock and note purchase rights.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On November 29, 1988, the Executive Committee of the Board of
Directors of CRSS Inc., then named CRS Sirrine, Inc. (the "Company") declared a
dividend distribution of one Right for each outstanding share of the Company's
Common Stock, par value $1.00 per share (the "Common Stock"), to stockholders
of record at the close of business on December 12, 1988 (the "Record Date").
Each Right entitles the registered holder to purchase from the Company one unit
(a "Unit"), consisting initially of one-fifth of a share of Common Stock and
one note (a "Note") in the principal amount equal to four-fifths of the current
market price of the Common Stock on the date of exercise, at a Purchase Price
of $72 in cash per Unit, subject to adjustment. The description and terms of
the Rights are set forth in a Rights Agreement dated as of November 29, 1988
between the Company and Morgan Shareholder Services Trust Company, as Rights
Agent, as amended (the "Rights Agreement"). The Notes are issuable under, and
subject to the terms and conditions of, an Indenture (the "Indenture"), dated
as of November 29, 1988, between the Company and Morgan Guaranty Trust Company
of New York, as Trustee. Certain capitalized terms used but not defined herein
shall have the meanings given them in the Rights Agreement.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common
Stock upon the date which is the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 30% or more of such outstanding shares of Common Stock (the
earlier of said dates being called the "Distribution Date").
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such
Common Stock certificates, (ii) new Common Stock certificates issued after the
Record Date will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 11, 1998, 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 the Common Stock as of the
close of business on the Distribution Date and,
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thereafter, the separate Rights Certificates alone will represent the Rights.
Except as otherwise determined by the Board of Directors, only shares of Common
Stock issued prior to the Distribution Date will be issued with Rights.
In the event that at any time following the Distribution Date, (i) the
Company is the surviving corporation in a merger with any Acquiring Person and
its Common Stock is not changed or exchanged, (ii) a Person becomes the
beneficial owner of 30% or more of the then outstanding shares of Common Stock
(except pursuant to an offer for all outstanding shares of Common Stock which
the Continuing Directors (as defined below) determine to be fair and otherwise
in the best interests of the Company and its stockholders), (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., a reverse stock split) (each defined as a
"Section 11(a)(ii) Event"), each holder of a Right will thereafter have the
right to receive, upon exercise, Common Stock (or, in certain circumstances,
cash, property or other securities of the Company, subject to certain
limitations) having a value equal to two times the exercise price of the Right.
However, Rights are not exercisable following the occurrence of any of the
events set forth above until such time as the Rights are no longer redeemable
by the Company as set forth below.
For example, at an exercise price of $72.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase
$144.00 worth of Common Stock (or other consideration, as noted above) for
$72.00. Assuming that the Common Stock had a per share value of $24.00 at such
time, the holder of each valid Right would be entitled to purchase 6 shares of
Common Stock for $72.00.
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 in which the Company is not the surviving corporation or where the
Company is the surviving corporation and all or part of the outstanding shares
of Common Stock are changed into or exchanged for stock or other securities of
any other person or cash or any other property (other than a merger described
in the second preceding paragraph or a merger which follows an offer described
in the second preceding paragraph), or (ii) 50% or more of the Company's assets
or earning power is sold or transferred (each defined as a "Section 13 Event"),
each holder of a Right (except Rights which previously have been voided as set
forth above) shall thereafter have the right to receive, upon exercise, common
stock of the acquiring company having a value equal to two times the exercise
price of the Right.
Notwithstanding any of the foregoing, following the occurrence of
either a Section 11(a)(ii) Event or a Section 13 Event, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by an Acquiring Person will be null and void.
For example, at an exercise price of $72.00 per Right, each Right
following an event set forth in the preceding paragraph would entitle its
holder to purchase $144.00 worth of common stock of the acquiring company for
$72.00. Assuming that the common stock of the acquiring
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company had a per share value of $24.00 at such time, the holder of each issued
Right would be entitled to purchase 6 shares of the common stock of the
acquiring company for $72.00.
The Purchase Price payable, and the number of shares of Common Stock
and principal amount of the Notes (or the number and kind of other securities
or property, as the case may be) 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
Common Stock, (ii) if holders of the Common Stock are granted certain rights or
warrants to subscribe for Common Stock or convertible securities at less than
the current market price of the Common Stock, or (iii) upon the distribution to
holders of the Common 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 shares of Common Stock
or Notes other than in denominations of $10 or integral multiples thereof and
in lieu thereof an adjustment in cash will be made. For fractional shares of
Common Stock, the adjustment will be based on the market price of the Common
Stock on the last trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in
part, at any time until ten days following the Stock Acquisition Date, at a
price of $.01 per Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Board of Directors). Under certain circumstances set
forth in the Rights Agreement, the decision to redeem requires the concurrence
of a majority of the Continuing Directors. After the redemption period has
expired, the Company's right of redemption may be reinstated, with the
concurrence of a majority of the Continuing Directors, (i) if an Acquiring
Person reduces its beneficial ownership to 5% or less of the outstanding shares
of Common Stock in a transaction or series of transactions not involving the
Company, and there are no other Acquiring Persons, or (ii) provided that such
redemption is incidental to a merger or other business combination transaction
or series of transactions involving the Company but not involving an Acquiring
Person or any person who was an Acquiring Person or any affiliate or associate
thereof. Immediately upon the action of the Board of Directors ordering
redemption of the Rights with, where required, the concurrence of the
Continuing Directors, the Rights will terminate and the only right of the
holders of Rights will be to receive the $.01 per Right redemption price.
The term "Continuing Directors" means any member of the Board of
Directors of the Company who was a member of the Board prior to November 29,
1988, and any person who is subsequently elected to the Board if such person is
recommended or approved by a majority of the Continuing Directors, but shall
not include an Acquiring Person or an affiliate or associate of an Acquiring
Person or any representative of the foregoing entities.
Until a Right is exercised, the holder thereof, as such, will have no
rights as stockholder or noteholder of the Company, including, without
limitation, the right to vote or to receive dividends or payments of principal
or interest. 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 Common Stock and
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Notes (or other consideration) of the Company or for Common Stock of an
acquiring company as set forth above.
Any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date, but
amendments of those provisions relating to the principal economic terms of the
Rights require approval of a majority of the Continuing Directors. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board (in certain circumstances, with the concurrence of the Continuing
Directors) in order to cure any ambiguity, 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.
Each outstanding share of Common Stock on December 12, 1988, and each
share that has been issued since then, received one Right. As of January 1,
1994, there were 12,767,259 shares of Common Stock issued and outstanding and
3,557,322 shares were held in the treasury. As of January 1, 1994, there were
1,162,446 shares of Common Stock reserved for issuance under employee option
and benefit plans. As long as the Rights are attached to the Common Stock, the
Company will issue one Right for each share of Common Stock issued between
December 12, 1988 and the Distribution Date.
The Notes issuable upon exercise of the Rights will be subject to the
terms and conditions of the Indenture. Each Note will be subordinated to
Senior Indebtedness (as defined) and will initially be issuable in the
principal amount equal to four-fifths of the current market price of the Common
Stock on the date of exercise of the Right with respect to which such Note is
being issued. Each Note will bear interest from the date of issuance at a rate
set prior to the initial issuance of the first Note by the Board of Directors,
who may rely on the advice of an independent investment banking firm. Notes
will be issued only in registered form, without coupons, in denominations of
$10 and integral multiples thereof.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired. However, the Rights should not interfere with
any merger or other business combination approved by the Board of Directors
because the Rights are redeemable under certain circumstances.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights is attached hereto as Exhibit 1 (and the
form of Rights Certificate and Summary of Rights to Purchase Common Stock and
Notes are attached to the Rights Agreement as Exhibits A and B, respectively)
and is incorporated herein by reference. The form of Indenture between the
Company and the Trustee, specifying the terms of the Notes, is attached hereto
as Exhibit 2 and is incorporated herein by reference.
Effective as of January 27, 1994, the Company entered into an
Amendment to Rights Agreement (the "First Amendment") to clarify certain
ambiguities, correct certain inconsistencies, and make certain other desired
changes in and to the Rights Agreement.
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Among other things, the First Amendment (i) makes the Rights of an Acquiring
Person null and void after a Section 13 Event or a Section 11(a)(ii) Event,
instead of only upon the occurrence of a Section 11(a)(ii) Event, (ii) provides
that the Rights Agreement continues in full effect, with respect to both the
Company and the Principal Party (as defined), even after a sale of 50% or more
of the assets or earning power of the Company, (iii) provides that the sale of
50% or more of the assets or earning power of the Company is not a Section 13
Event if it is approved by the Board of Directors or the Continuing Directors,
as applicable, (iv) makes certain minor exceptions to the definition of
Acquiring Person, (v) authorizes the Board of Directors or, as applicable, the
Continuing Directors, to appoint a Committee to perform the Board's
responsibilities and exercise its powers under the Rights Agreement, and (vi)
reflects the name change of the Rights Agent from Morgan Shareholder Services
Trust Company to First Chicago Trust Company of New York. The First Amendment
is attached hereto as Exhibit 3, and is incorporated herein by reference.
On May 16, 1995, the Company, American Tractebel Corporation, a
Delaware corporation ("Tractebel") and ATC Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Tractebel ("ATC"), entered into
an Agreement of Merger, as amended from time to time (the "Merger Agreement").
The Merger Agreement provides, among other things, for the business combination
of the Company and Tractebel through a first-step cash tender offer by ATC for
all of the outstanding shares of Common Stock followed by a second-step merger
of the two companies.
Pursuant to the Merger Agreement, not later than immediately prior to
the commencement of the Offer (as defined in the Merger Agreement), the Board
of Directors of the Company shall take such action as is necessary to amend the
Rights Agreement to provide that the transaction contemplated by the Offer and
the Merger Agreement will not trigger the Rights issued pursuant to the Rights
Plan.
Effective as of May 16, 1995, the Company entered into a Second
Amendment to Rights Agreement (the "Second Amendment") to make changes
contemplated by the Merger Agreement and to correct certain inconsistencies in
the Rights Agreement. Among other things, the Second Amendment (i) provides
that Tractebel and affiliates of Tractebel will not become an "Acquiring
Person," and that no "Distribution Date," "Section 11(a)(ii) Event," "Section
13 Event," "Stock Acquisition Date" or "Triggering Event" (as such terms are
defined in the Rights Agreement) will occur as a result of: (A) the approval,
execution or delivery of the Merger Agreement, (B) the acquisition of shares of
Common Stock pursuant to the Offer, or (C) the consummation of the Merger (as
defined in the Merger Agreement), and (ii) provides that a tender or exchange
offer for all outstanding shares of Common Stock meeting certain requirements
is not a Section 13 Event. The Second Amendment is attached hereto as Exhibit
4, and is incorporated herein by reference.
The foregoing descriptions of the Rights and the Notes do not purport
to be complete and are qualified in their entirety by reference to the Exhibits
hereto.
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ITEM 2. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBITS
------ --------------------------
<S> <C>
1 -- Form of Rights Agreement dated as of November 28, 1988 between the Company and Morgan
Shareholder Services Trust Company, as Rights Agent, which includes, as Exhibit A thereto, the
form of Rights Certificate and, as Exhibit B thereto, the Summary of Rights to Purchase Common
Stock and Notes (filed as Exhibit 1 to Form 8-A dated November 30, 1988).
2 -- Form of Indenture dated as of November 29, 1988 between the Company and Morgan Guaranty Trust
Company of New York, as Trustee (filed as Exhibit 2 to Form 8-A dated November 30, 1988).
3 -- Amendment to Rights Agreement dated as of January 27, 1994 between the Company and First
Chicago Trust Company of New York, as Rights Agent (filed as Exhibit 3 to Form 8-A/A dated
March 30, 1994).
4 -- Second Amendment to Rights Agreement dated as of May 16, 1995 between the Company and First
Chicago Trust Company of New York, as Rights Agent.
</TABLE>
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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 report to be signed on its
behalf by the undersigned hereunto duly authorized.
CRSS INC.
May 16, 1995 By: /s/ Bruce W. Wilkinson
----------------------------------
Bruce W. Wilkinson
President, Chief Executive Officer and
Chairman of the Board
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER IDENTIFICATION OF EXHIBITS
------ --------------------------
<S> <C>
1 -- Form of Rights Agreement dated as of November 28, 1988 between the Company and Morgan
Shareholder Services Trust Company, as Rights Agent, which includes, as Exhibit A thereto,
the form of Rights Certificate and, as Exhibit B thereto, the Summary of Rights to Purchase
Common Stock and Notes (filed as Exhibit 1 to Form 8-A dated November 30, 1988).
2 -- Form of Indenture dated as of November 29, 1988 between the Company and Morgan Guaranty Trust
Company of New York, as Trustee (filed as Exhibit 2 to Form 8-A dated November 30, 1988).
3 -- Amendment to Rights Agreement dated as of January 27, 1994 between the Company and First
Chicago Trust Company of New York, as Rights Agent (filed as Exhibit 3 to Form 8-A/A dated
March 30, 1994).
4 -- Second Amendment to Rights Agreement dated as of May 16, 1995 between the Company and First
Chicago Trust Company of New York, as Rights Agent.
</TABLE>
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Exhibit 4
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is
entered into by CRSS Inc., a Delaware corporation ("CRSS"), and First Chicago
Trust Company of New York (the "Rights Agent"), effective as of May 16,
1995, immediately after the execution of the Merger Agreement (as defined
below).
WHEREAS, CRSS and the Rights Agent entered into that certain Rights
Agreement dated as of November 29, 1988, as amended by Amendment to Rights
Agreement effective as of January 27, 1994 (the "Agreement"), and all
capitalized terms not defined herein shall have the meanings given to such
terms in the Agreement; and
WHEREAS, CRSS and the Rights Agent desire to amend the Agreement as
provided herein pursuant to Section 26 of the Agreement, which authorizes CRSS
and the Rights Agent, if CRSS so directs, to supplement or amend any provision
of the Agreement without the approval of any holders of CRSS's Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth the parties hereto agree as follows:
1. Section 1(a) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as hereinafter defined) of 20% or more
of the shares of Common Stock then outstanding, but shall not include
(i) the Company, (ii) any Subsidiary (as hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan, (v) any Person who notifies the Board of Directors
in writing within five days after the acquisition making such Person
the Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding that such acquisition was inadvertent, and who within two
days after such notification divests a sufficient number of shares of
Common Stock so that such Person is no longer the Beneficial Owner of
20% or more of the shares of Common Stock then outstanding
("Inadvertent Acquisition"), (vi) an underwriter that acquires such
percentage of the shares of Common Stock pursuant to a customary
agreement in a public offering of such Common Stock, or (vii) American
Tractebel Corporation, a Delaware corporation ("Tractebel"), and any
Affiliate of Tractebel, so long as neither Tractebel nor any Affiliate
of Tractebel is the Beneficial Owner of more than 1% of the issued and
outstanding capital stock of the Company other than capital stock of
the Company of which Tractebel or any Affiliate of Tractebel is the
Beneficial Owner solely by reason of (A) the Agreement of Merger dated
May 16, 1995 between the Company and Tractebel, as amended from time
to time (the "Merger
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Agreement"), or (B) the acquisition of shares of Common Stock pursuant
to the Offer (as defined in the Merger Agreement), or (C) both. If
any of these exceptions to the definition of an Acquiring Person
apply, then the Person to whom the exception pertains shall not be an
Acquiring Person for any purpose under this Agreement, including,
without limitation, with respect to the definitions of Distribution
Date, Section 11(a)(ii) Event, Section 13 Event, Stock Acquisition
Date and Triggering Event.
Notwithstanding any provision of this Agreement to the
contrary, (1) no Distribution Date, Section 11(a)(ii) Event, Section
13 Event, Stock Acquisition Date or Triggering Event shall be deemed
to have occurred, (2) neither Tractebel nor any Affiliate of Tractebel
shall be deemed to have become an Acquiring Person, and (3) no holder
of Rights shall be entitled to exercise such Rights under, or be
entitled to any other rights pursuant to, this Agreement solely by
reason of (x) the approval, execution or delivery of the Merger
Agreement, (y) the acquisition of shares of Common Stock pursuant to
the Offer (as defined in the Merger Agreement), or (z) the
consummation of the Merger (as defined in the Merger Agreement);
provided, however, that in the event Tractebel or any Affiliate of
Tractebel becomes the Beneficial Owner after the date hereof of any
shares of Common Stock in any manner other than as set forth in
Section 1(a)(vii)(A), (B) or (C) above, the provisions of this
sentence (other than this proviso) shall not be applicable; and
provided, further, that, notwithstanding Section 26 of this Agreement,
any supplement or amendment to this Agreement can, in the Company's
discretion, have retroactive effect with respect to Tractebel and its
Affiliates, regardless of whether Tractebel and its Affiliates
consent, and regardless of whether the supplement or amendment has an
adverse affect on Tractebel or its Affiliates.
2. Section 13(e) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(e) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if (i) such
transaction is consummated with a Person or Persons who acquired
shares of Common Stock pursuant to a tender or exchange offer for all
outstanding shares of Common Stock which complies with the provisions
of Section 11(a)(ii)(B) hereof (or a wholly owned Subsidiary of any
such Person or Persons), (ii) the price per share of Common Stock
offered in such transaction is not less than the price per share of
Common Stock paid to all holders of shares of Common Stock whose
shares were purchased pursuant to such tender or exchange offer; and
(iii) the form of consideration being offered to the remaining holders
of shares of Common Stock pursuant to such transaction is the same as
the form of consideration paid pursuant to such tender or exchange
offer. Upon consummation of any transaction contemplated by the
preceding sentence of this Section 13(e), all Rights hereunder shall
expire. Furthermore, notwithstanding anything in this Agreement to
the contrary, Section 13 shall not
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be applicable to a transaction described in subparagraph (z) of
Section 13(a) if such transaction is determined by a majority of the
Continuing Directors to be (a) at a price which is fair to
stockholders and (b) otherwise in the best interests of the Company
and its stockholders. The Rights hereunder shall not expire upon
consummation of any transaction contemplated by the immediately
preceding sentence of this Section 13(e).
3. Except as specifically provided herein, the Agreement shall
continue in full force and effect in accordance with its terms without
amendment or modification.
IN WITNESS WHEREOF, the undersigned parties hereby execute and agree
to be bound by this Amendment, effective as of May 16, 1995.
Attest: CRSS INC.
By: /s/ TIMOTHY DUNNE By: /s/ BRUCE WILKINSON
_______________________________ ______________________________
Name: Timothy Dunne Name: Bruce Wilkinson
_____________________________ ____________________________
Title: President and CEO
___________________________
Countersigned:
FIRST CHICAGO TRUST
COMPANY OF NEW YORK
By: /s/
_______________________________
Name:
_____________________________
Title:
____________________________
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