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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
DATE OF REPORT: (DATE OF EARLIEST EVENT REPORTED): MARCH 18, 1996
DIGICON INC.
(Exact name of registrant as specified in its charter)
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Delaware 1-7427 76-0343152
(State of Incorporation) (Commission File Number) (IRS Employer Identification No.)
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3701 Kirby Drive
Houston, Texas 77098
(Address of Principal Executive Offices)
713/526-5611
(Registrant's telephone number, including area code)
(Not Applicable)
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
ISSUANCE OF RIGHTS UNDER SHAREHOLDER RIGHTS PLAN
GENERAL
On March 18, 1996, the Board of Directors of Digicon Inc. (the
"Company") declared a dividend distribution of one Right for each outstanding
share of common stock, par value $0.01 per share (the "Common Stock"), of the
Company to shareholders of record at the close of business on April 1, 1996,
(the "Record Date"). Except as described below, each Right when exercisable,
entitles the registered holder to purchase from the Company one one-thousandth
(1/1,000th) of a share of Preferred Stock--Junior Participating Series A, par
value $.01 per share (the "Preferred Stock"), at a price of $19.50 per one
one-thousandth (1/1,000th) share (the "Purchase Price"), subject to adjustment.
The description and terms of the Rights are set forth in a Right Agreement (the
"Rights Agreement") between the Company and Chemical Mellon Shareholder
Services, L.L.C., as Rights Agent.
As of March 18, 1996, there were approximately 11,123,500 shares of
Common Stock outstanding and approximately 1,356,500 shares of Common Stock
were reserved for issuance under stock option plans, outstanding warrants and
upon conversion of outstanding preferred stock. Each outstanding share of
Common Stock on April 1, 1996, will receive one Right. 250,000 shares of
Preferred Stock will be reserved for issuance in the event of exercise of the
Rights.
TRANSFER AND SEPARATION
The Rights are not exercisable until the Distribution Date.
Accordingly, the Rights Agreement provides that, until the Distribution Date
(or earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Company's Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Stock certificates issued after the Record Date upon transfer or new
issuance of Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Stock outstanding as of the Record Date, even without such notation or a
copy of this Summary of Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the
Rights. As of and after the Distribution Date, the Rights shall be evidenced
solely by Right Certificates and may be transferred by the transfer of the
Right Certificate separately and apart from any transfer of one or more shares
of Common Stock.
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DISTRIBUTION DATE
The term "Distribution Date" means the earlier of:
(i) the close of business on the tenth day after 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 30% or more of the outstanding shares
of the Company's Common Stock, other than pursuant to a Qualifying
Tender Offer (defined below); or
(ii) the close of business on the tenth Business Day (or such
later date as may be determined by action of the Company's Board of
Directors) after the date of the commencement or the announcement of
the intention to commence by any person or group (other than certain
exempt persons) of a tender offer or exchange offer upon the
successful completion of which such person or group would be the
beneficial owner of 30% or more of the then outstanding Common Stock
of the Company, regardless of whether any shares are actually
purchased pursuant to such offer.
A person or group is generally not considered an "Acquiring Person,"
if either the beneficial ownership of its Common Stock that would otherwise
cause it to be an Acquiring Person was acquired in a transaction or series of
transactions approved in advance by the Board of Directors of the Company (the
"Board of Directors"), or the Board of Directors determines in good faith that
the person who would otherwise be an Acquiring Person has become such
inadvertently and such person divests as promptly as practicable a sufficient
number of shares of Common Stock so that the person would no longer
beneficially own 30% or more of the outstanding Common Stock.
A "Qualifying Tender Offer" means a tender offer or exchange offer
that a majority of the members of the Board of Directors determine to be at a
fair price and otherwise in the best interests of the Company and its
shareholders.
EXERCISE
Until the Distribution Date (as defined above), the Rights are not
exercisable. However, in the event that any person or group or affiliated or
associated persons becomes an Acquiring Person, and subject to the Company's
right to redeem the Rights, each holder of a Right (other than an Acquiring
Person), will thereafter have the right to receive upon exercise a number of
one one-thousandths (1/1,000ths) of a share of Preferred Stock determined by
dividing the Purchase Price (subject to adjustment) by 50% of the current
market price of the Common Stock on the date a person becomes an Acquiring
Person. Because of the nature of the voting, dividend, and liquidation rights
of the Preferred Stock, the value of each one one-thousandth (1/1,000th)
interest in a share of Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of Common Stock. It is therefore
anticipated (although there can be no assurance) that the value of the
Preferred Stock purchased upon exercise of the Rights will be approximately
twice the exercise price paid.
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If the Rights are not redeemed as described below and in the event
that the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold
after a person or group has become an Acquiring Person, proper provision will
be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have a market value of two times the exercise
price of the Right.
Following the occurrence of any of the events set forth in the
preceding two paragraphs any Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will immediately become null and void. While the distribution of the
Rights will not be taxable to shareholders or to the Company, shareholders may
recognize taxable income upon the occurrence of subsequent events--for example,
upon the Rights becoming exercisable with respect to an acquiror's stock,
whether or not exercised. Holders of the Rights should consult with their tax
advisors in the event any such subsequent event occurs.
The Rights will expire on March 31, 1999 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, as described below. Until a
Right is exercised, the holder thereof, as such, will have no rights as a
shareholder of the Company, including, without limitation, the right to vote or
to receive dividends.
REDEMPTION
At any time prior to the time a person or group of affiliated or
associated persons becomes an Acquiring Person, the Board of Directors may
redeem the Rights in whole, but not in part, at a price of $.001 per Right (the
"Redemption Price"). The redemption of the Rights may be made effective at
such time on such basis with such conditions as the Board of Directors in its
sole discretion may establish. Immediately upon any redemption of the Rights,
the right to exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
EXCHANGE
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group of 50% or more of the
outstanding Common Stock, the Board of Directors may exchange the Rights (other
than Rights owned by such person or group which will have become void), in
whole or in part, at an exchange ratio of one share of Common Stock per Right
(subject to adjustment).
THE PREFERRED STOCK
Each share of Preferred Stock will be entitled to an aggregate
dividend of 1,000 times the dividend declared per share of Common Stock. In
the event of liquidation, the holders of the Preferred Stock will be entitled
to an aggregate payment of 1,000 times the payment made per share of Common
Stock, but in no event shall they receive less than $1,000 per share. Each
share of Preferred Stock have will have 1,000 votes, voting together with the
Common Stock, except as
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otherwise provided by law. Finally, in the event of any merger, consolidation,
or other transaction in which Common Stock are exchanged, each share of
Preferred Stock will be entitled to receive 1,000 times the amount received per
share of Common Stock. The shares of Preferred Stock purchasable under the
Plan will not be redeemable.
ANTIDILUTION
The Purchase Price payable, the number of Rights, and the number of
shares of Preferred Stock or other securities or property issuable, upon
exercise of the Rights, are subject to adjustment from time to time to prevent
dilution, among other circumstances, in the event of a stock dividend on, or a
subdivision, split, combination, consolidation or reclassification of, the
Preferred Stock or the Common Stock, or a reverse split of the outstanding
shares of Preferred Stock or the Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
the Purchase Price. The Company may, but is not required to, issue fractional
Rights or fractional Preferred Stock (other than fractions which are integral
multiples of one one-thousandth (1/1,000th) of a share of Preferred Stock,
which may, at the election of the Company, be evidenced by depositary receipts.
In lieu thereof, an adjustment in cash will be made based upon the market price
of the Common Stock on the last trading day prior to the date of exercise.
AMENDMENT OF RIGHTS AGREEMENT
Prior to the Distribution Date, the Company may supplement or amend
any provision of the Rights Agreement without the approval of any holders of
the Rights. From and after the Distribution Date, the Company may supplement
or amend the Rights Agreement without the approval of any holders of Right
Certificates in order (a) to cure any ambiguity, (b) to correct or supplement
any provision contained therein which may be defective or inconsistent with any
other provision therein, (c) to shorten or lengthen any time period thereunder
or (d) to change or supplement the provisions thereof in any manner which the
Company may deem necessary or desirable and which does not adversely affect the
interests of the holders of Right Certificates (other than Acquiring Person or
an Affiliate or Associate of an Acquiring Person). Notwithstanding the
foregoing, no supplement or amendment pursuant to clause (c) may lengthen (x) a
time period relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable or (y) any other time period unless such
lengthening is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights.
CERTAIN DETERMINATIONS
The Rights Agreement prohibits the making of certain determinations
and actions by the Board of Directors unless at the time of such determinations
there are then in office not less than five Continuing Directors and the
determination or action in question is also approved by a majority of the
Continuing Directors then in office. These determinations and actions include:
(i) determining that a tender offer or exchange offer is a Qualifying Tender
Offer; (ii) extending the Distribution Date following the commencement or
announcement of a tender offer or exchange offer; (iii) determining
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that a person became an Acquiring Person inadvertently; (iv) redeeming of the
Rights; (v) exchanging the Rights for Common Stock; (vi) valuing certain
securities or assets other than the Common Stock and Preferred Stock; and
(vii) amending or supplementing the Rights Agreement.
A "Continuing Director" means any member of the Board of Directors who
is not an Acquiring Person or an affiliate or associate of an Acquiring Person,
and who either (i) was a member of the Board of Directors prior to the time
that any person became an Acquiring Person (other than pursuant to a Qualifying
Tender Offer), or (ii) subsequently became a member of the Board of Directors,
and whose nomination for election or election to the Board of Directors was
recommended or approved by the Board of Directors when there are then in office
at least five Continuing Directors and such nomination for election or election
was recommended or approved by a majority of the Continuing Directors then on
the Board of Directors.
CERTAIN EFFECTS OF THE RIGHTS
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, and under certain circumstances the Rights
beneficially owned (or that were owned) by such a person or group may become
void. The Rights should not interfere with any merger or other business
combination approved by the Board of Directors because, if the Rights would
become exercisable as a result of such merger or other business combination,
the Board of Directors, may, at its option prior to time that any Person
becomes an Acquiring Person, redeem all (but not less than all) of the then
outstanding Rights at the Redemption Price.
THE RIGHTS AGREEMENT
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A filed
by the Registrant with respect to the Rights. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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Exhibit No. Exhibit
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4.1 Rights Agreement dated as of March 15, 1996, between Digicon
Inc. and Chemical Mellon Shareholder Services, L.L.C., as
Rights Agent, which includes as Exhibit B thereto the Form
of Right Certificate (Incorporated by reference to Exhibit
1 to Registrant's Form 8-A Registration Statement dated
March 18, 1996).
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SIGNATURES
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 thereunto duly authorized.
Date: March 19, 1996
DIGICON INC.
By: /s/ Richard W. McNairy
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Richard W. McNairy,
Vice President and Principal
Financial Officer
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