SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
(Amendment No. 2)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FLOWSERVE CORPORATION (formerly
known as The Duriron Company, Inc.
and then Durco International Inc.)
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(Exact name of registrant as specified in its charter)
New York 31-0267900
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
222 W. Las Colinas Blvd., Suite 1500
Irving, Texas 75039
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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 each exchange on which
to be so registered each class is to be registered
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Series A Junior Participating New York Stock Exchange
Preferred Stock Purchase Rights
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:
None
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(Title of class)
Exhibit Index on Page 8
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Item 1. Description of Registrants Securities to Be Registered.
On August 1, 1986, the Board of Directors of Flowserve
Corporation (formerly known as The Duriron Company, Inc. and then Durco
International Inc.) (the "Company") declared a dividend distribution of one
Preferred Stock Purchase Right for each outstanding share of Common Stock of
$1.25 par value ("Common Stock") of the Company. Each Right entitles the
registered holder to purchase from the Company one one-hundredth (1/100) of a
share of Series A Junior Participating Preferred Stock, $1.00 par value, of the
Company ("Series A Preferred Stock"), at a price of $90.00 per one-hundredth
(1/100) of a share ("Purchase Price"). The description and terms of the Rights
are set forth in the Rights Agreement dated August 1, 1986 between the Company
and Bank One, Dayton, N.A., as amended by the Amendment to the Rights Agreement
dated August 1, 1996 and further amended by the Second Amendment to the Rights
Agreement dated June 1, 1998 (together with such amendments, the "Rights
Agreement") between the Company and National City Bank, as successor rights
agent (the "Rights Agent") to Keybank National Association which succeeded Bank
One, Dayton, N.A. in such capacity.
Until the close of business on the earlier of (i) the tenth
day after a public announcement that a person or group of affiliated or
associated persons ("Acquiring Person"), other than the Company, any subsidiary
of the Company or any employee benefit plan, employee stock plan or dividend
reinvestment plan of the Company or of any subsidiary of the Company ("Exempt
Person"), has acquired, or obtained the right to acquire, beneficial ownership
of securities of the Company representing 20% or more of the outstanding Common
Stock of the Company (the "Stock Acquisition Date") or (ii) the tenth day after
the commencement of, or public announcement of an intention to make, a tender or
exchange offer (other than a tender or exchange offer by an Exempt Person) the
consummation of which would result in the ownership of 30% or more of the
outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of August 13, 1986, by such Common
Stock certificate with a copy of the Summary of Rights attached thereto. The
Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be represented by and
transferred with, and only with, the Common Stock. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new certificates issued for
Common Stock (including, without limitation, certificates issued upon transfer
or exchange of Common Stock) after August 13, 1986 will contain a legend
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender for transfer of
any of the Company's Common Stock certificates with or without the aforesaid
legend or a copy of the Summary of Rights 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 Company's Common Stock as of the close of business on
the Distribution Date and such separate certificates alone will evidence the
Rights from and after the Distribution Date.
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The Rights are not exercisable until the Distribution Date.
The Rights will expire at the close of business on August 13, 2006, unless
earlier redeemed by the Company as described below.
The Series A Preferred Stock will be nonredeemable and, unless
otherwise provided in connection with the creation of a subsequent series of
preferred stock, subordinate to any other series of the Company's preferred
stock. Series A Preferred Stock may not be issued except upon exercise of
Rights. Each share of Series A Preferred Stock will be entitled to receive when,
as and if declared, a quarterly dividend in an amount equal to the greater of
$14.00 per share or 100 times the cash dividends declared on the Company's
Common Stock. In addition, the Series A Preferred Stock is entitled to 100 times
any non-cash dividends (other than dividends payable in equity securities)
declared on the Common Stock, in like kind. In the event of liquidation, the
holders of the Series A Preferred Stock will be entitled to receive a
liquidation payment in an amount equal to the greater of $3,000 per share or 100
times the payment made per share of Common Stock. Each share of Series A
Preferred Stock will have 100 votes, voting together with the Common Stock. In
the event of any merger, consolidation or other transaction in which common
shares are exchanged, each share of Series A Preferred Stock will be entitled to
receive 100 times the amount received per share of Common Stock. The rights of
the Series A Preferred Stock as to dividends, liquidation and voting are
protected by antidilution provisions. Whenever there are arrearages in dividend
payments on the Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, the Company shall not purchase any
shares of Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication to all holders of such shares as the Board of
Directors shall determine will result in fair treatment among the respective
series or classes.
The number of shares of Series A Preferred Stock issuable upon
exercise of the Rights and the Purchase Price are subject to certain adjustments
from time to time in the event of a stock dividend on, or a subdivision or
combination of, the Common Stock. The Purchase Price is subject to adjustment in
the event of extraordinary distributions of cash or other property to holders of
Common Stock. The number of shares of Series A Preferred Stock issuable upon
exercise of the Rights and the Purchase Price are also subject to adjustment
from time to time in the event of a combination, consolidation or
reclassification of the Series A Preferred Stock.
Unless the Rights are earlier redeemed, in the event that,
after the Rights have become exercisable, the Company were to be acquired in a
merger or other business combination (in which any shares of the Company's
Common Stock are changed into or exchanged for other securities or assets) or
more than 50% of the assets or earning power of the Company and its subsidiaries
(taken as a whole) were to be sold or transferred in one or a series of related
transactions, the Rights Agreement provides that proper provision will be made
so that each holder of record of a Right will from and after such date have the
right to receive, upon payment of the Purchase Price, that number of shares of
common stock of the acquiring company having a market value at the time of such
transaction equal to two times the Purchase Price.
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4
In the event any Person becomes an Acquiring Person or any
Acquiring Person, directly or indirectly, (1) merges into the Company or
otherwise combines with the Company in a transaction in which the Company is the
continuing or surviving corporation of such merger or combination and the Common
Stock of the Company remains outstanding and no shares thereof shall be changed
into or exchangeable for Stock or other securities of any other person or of the
Company or cash or any other property, (2) transfers, in one or more
transactions, any assets to the Company in exchange for capital stock of the
Company or for securities exercisable for or convertible into capital stock of
the Company or otherwise obtains from the Company with or without consideration,
any capital stock of the Company or securities exercisable for or convertible
into capital stock of the Company (other than as part of a pro rata offer or
distribution to all holders of such stock), (3) sells, purchases, leases,
exchanges, mortgages, pledges, transfers or otherwise disposes (in one or more
transactions) to , from or with the Company or any of its subsidiaries, as the
case may be, assets on terms and conditions less favorable to the Company or
such subsidiaries than the Company or such subsidiaries would be able to obtain
in arm's length negotiation with an unaffiliated third party, (4) receives any
compensation from the Company or any of the Company's subsidiaries for services
other than compensation for employment as a regular or part-time employee or
fees for serving as a director at rates in accordance with the Company's (or its
subsidiaries') past practice, or (5) receives the benefit (except
proportionately as a shareholder) of any loans, advances, guarantees, pledges or
other financial assistance on terms and conditions less favorable to the Company
or such subsidiaries than the Company or such subsidiaries would be able to
obtain in arm's length negotiation with an unaffiliated third party, then, and
in each such case, proper provision shall be made so that each holder of record
of a Right, other than the Acquiring Person, will thereafter have the right to
receive, upon payment of the Purchase Price, that number of shares of the
Company's Series A Preferred Stock having a market value at the time of the
transaction equal to two times the Purchase Price. This same right shall be
available to each holder of record of a Right, other than the Acquiring Person,
if, while there is an Acquiring Person, there shall occur any reclassification
of securities (including any reverse stock split), recapitalization of the
Company, or any merger or consolidation of the Company with any of its
subsidiaries or any other transaction or transactions involving the Company or
any of its subsidiaries (whether or not involving the Acquiring Person) which
have the effect of increasing by more than 1% the proportionate share of the
outstanding shares of any class of equity securities of the Company or any of
its subsidiaries which is directly or indirectly owned or controlled by the
Acquiring Person. The holder of any Rights that are or were at any time
beneficially owned by an Acquiring Person on or after the earlier of the Stock
Acquisition Date or the Distribution Date, which is or was involved in or which
caused or facilitated, directly or indirectly, the event or transaction or
transactions described in this paragraph shall not be entitled to the benefit of
the adjustment described in this paragraph.
Fractions of shares of Series A Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a share) may, at
the election of the Company, be evidenced by depositary receipts. The Company
may also issue cash in lieu of fractional shares which are not integral
multiples of one one-hundredth of a share.
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At any time until the tenth day following the Stock
Acquisition Date (subject to extension by the Board of Directors), the Company
may redeem the Rights in whole, but not in part, at a price of $0.05 per Right.
Immediately upon the action of the Board of Directors of the Company authorizing
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
without any interest thereon.
Until a Right is exercised, the holder, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The issuance of the Rights is not taxable to the Company or to
shareholders under presently existing federal income tax law, and will not
change the way in which shareholders can presently trade the Company's shares of
Common Stock. If the Rights should become exercisable, shareholders, depending
on the then existing circumstances, may recognize taxable income.
Subsequent to the issuance of any shares of Series A Preferred
Stock, the provisions of the Certificate of Amendment to the Certificate of
Incorporation of the Company shall not be amended in any manner which would
materially affect the rights, privileges or powers of the Series A Preferred
Stock without, in addition to any other vote of shareholders required by law,
the affirmative vote of the holders of 80% or more of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
The Board of Directors, at its option, may exchange each Right
for (1) one share of Common Stock or (2) such number of Units of Preferred Stock
as will equal (x) the difference between the aggregate market price of the
number of Units of Preferred Stock to be received upon the occurrence of a
transaction or event described in Section 11(a)(ii) of the Rights Agreement and
the Purchase Price divided by (y) the market price per Unit of Preferred Stock
upon the occurrence of a transaction or event described in Section 11(a)(ii) of
the Rights Agreement. Notwithstanding the foregoing, the Company may not effect
such exchange at any time after any Person (other than an Exempt Person),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 80% or more of the shares of Company Common Stock then
outstanding.
The Rights may have certain anti-takeover effects. The Rights
may cause substantial dilution to a person or group who attempts to acquire the
Company on terms not approved by the Company's Board of Directors. Because the
Rights may be redeemed by the Company at $0.05 per Right at any time on or prior
to the tenth day following the Stock Acquisition Date (subject to extension by
the Board of Directors), the Rights are not likely to interfere with any merger
or other business combination approved by the Board prior to such time.
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The form of the Rights Agreement between the Company and Bank
One, Dayton, N.A. specifying the terms of the Rights, which includes as Exhibit
A the form of Certificate of Amendment specifying the terms of the Series A
Preferred Stock, as Exhibit B the form of Right Certificate, and as Exhibit C
the form of Summary of Rights to Purchase Series A Junior Participating
Preferred Stock, and the Amendment to the Rights Agreement between the Company
and Keybank National Association have been previously filed and are incorporated
herein by reference. The Second Amendment to the Rights Agreement between the
Company and National City Bank is attached hereto as an exhibit and incorporated
herein by reference. The foregoing description of the Rights is qualified by
reference to such documents.
Item 2. Exhibits.
10.1 Form of the Rights Agreement dated as of August 1,
1986 as filed as an Exhibit to Form 8-A filed by the
Registrant on August 13, 1986 is incorporated herein
by reference.
10.2 Amendment to the Rights Agreement dated August 1,
1996 as filed as an Exhibit to Form 8-A/A filed by
the Registrant on July 18, 1997 is incorporated
herein by reference.
10.3 Second Amendment to the Rights Agreement dated June 1,
1998.
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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, thereto duly authorized.
FLOWSERVE CORPORATION
By /s/ Ronald F. Shuff
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Name: Ronald F. Shuff
Title: Vice President, Secretary and General
Counsel
Date: June 11, 1998
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EXHIBIT INDEX
Exhibit Page
No. Description No.
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10.3 Second Amendment to the Rights Agreement dated
June 1, 1998
EXHIBIT 10.3
SECOND AMENDMENT TO THE RIGHTS AGREEMENT
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SECOND AMENDMENT
TO
RIGHTS AGREEMENT
This Second Amendment, made and entered into as of this 1st
day of June, 1998, by and between FLOWSERVE CORPORATION (formerly known as The
Duriron Company, Inc. and then Durco International Inc. (the "Company")) and
National City Bank, as successor rights agent to Keybank National Association
(the "Rights Agent"), is being executed under the following circumstances:
WHEREAS, the Board of Directors of the Company on August 1,
1986 (i) authorized the issuance and declared a dividend of one right ("Right")
for one share of Common Stock, $1.25 par value per share, of the Company
outstanding as of the close of business on August 13, 1986, each Right
representing the right to purchase one one-hundredth of a share of Series A
Junior Participating Preferred Stock, $1.00 par value per share, of the Company
having the rights and preferences set forth in Exhibit A to the Rights
Agreement, dated as of August 1, 1986 (the "Rights Agreement"), between the
Company and Bank One, Dayton, National Association, as rights agent, upon the
terms and subject to the conditions set forth in the Rights Agreement, and (ii)
further authorized the issuance of one Right with respect to each share of
Common Stock of the Company that shall become outstanding between August 13,
1986 and the Distribution Date (as defined herein); and
WHEREAS, the Rights Agreement has been amended pursuant to the
Amendment to Rights Agreement dated as of August 1, 1996, in accordance with
Section 26 of the Rights Agreement; and
WHEREAS, the Board of Directors of the Company, at a meeting
properly noticed and convened on April 23, 1998, authorized this amendment to
the Rights Agreement, as of the date set forth above;
NOW THEREFORE, the Company and the Rights Agent hereby amend
the Rights Agreement as follows, pursuant to Section 26 of the Rights Agreement:
1. The following definitions shall be inserted in appropriate alphabetical
order in Section 1:
"Adjustment Spread" shall have the meaning set forth in
Section 33(a)(ii) hereof.
"Excluded Rights" shall mean any Rights that are or were at
any time on or after the earlier of the Stock Acquisition Date
or the Distribution Date acquired or beneficially owned by any
Acquiring Person or any Associate or Affiliate of any such
Acquiring Person, or any transferee of such Rights.
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"Section 33(a)(i) Exchange Ratio" shall have the meaning set
forth in Section 33(a)(i) hereof.
"Section 33(a)(ii) Exchange Ratio" shall have the meaning set
forth in Section 33(a)(ii) hereof.
"Unit" shall mean one one-hundredth of a share of Preferred
Stock.
2. Sections 7(e), 7(f) and 7(g) shall be deleted from the Rights Agreement
in their entirety.
3. Section 11(a)(ii) shall be amended by inserting the following paragraph
after Section 11(a)(ii)(B):
(C) Any Person shall become an Acquiring Person.
4. A new Section 33 shall be inserted in appropriate numerical order as
follows:
SECTION 33. Exchange.
(a) (i) The Company may, at its option, at
any time after any person becomes an Acquiring Person, upon
resolution adopted by a majority of the Company's Board of
Directors, exchange all or any portion of the then outstanding
and exercisable Rights (which shall not include the Excluded
Rights) for shares of Common Stock at an exchange ratio of one
share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Section 33(a)(i) Exchange
Ratio"). Notwithstanding the foregoing, the Company may not
effect such exchange at any time after any Person (other than
an Exempt Person), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of 80% or more of
the shares of Company Common Stock then outstanding.
(ii) The Company may, at its option, at any
time after any person becomes an Acquiring Person, upon
resolution adopted by a majority of the Company's Board of
Directors, exchange all or any portion of the then outstanding
and exercisable Rights (which shall not include the Excluded
Rights) for Units of Preferred Stock at an exchange ratio
specified in the following sentence, as appropriately adjusted
to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof. Subject to such
adjustment, each Right may be exchanged for that number of
Units of Preferred Stock obtained by dividing the Adjustment
Spread (as defined below) by the then current market price
(determined pursuant to Section 11(b)) per Unit of Preferred
Stock on the earlier of (i) the date on which any Person
becomes an
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Acquiring Person and (ii) the date on which a tender or
exchange offer by any Person (other than an Exempt Person) is
first published or sent or given within the meaning of Rule
14d-4(a) of the Exchange Act Regulations or any successor
rule, if upon consummation thereof such Person would be the
Beneficial Owner of 30% or more of the shares of Company
Common Stock then outstanding (such exchange ratio being the
"Section 33(a)(ii) Exchange Ratio"). The "Adjustment Spread"
shall equal (x) the aggregate market price on the date of such
event of the number of Units of Preferred Stock as shall equal
the result obtained by (1) multiplying the then current
Purchase Price by the then number of Units of Preferred Stock
for which such Right was exercisable immediately prior to the
occurrence of any adjustment pursuant to Section 11(a)(ii),
and (2) dividing that product by 50% of the then current
market price (determined pursuant to Section 11(b), minus (y)
the Purchase Price. Notwithstanding the foregoing, the Company
may not effect such exchange at any time after any Person
(other than an Exempt Person), together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner of
80% or more of the shares of the Company Common Stock then
outstanding.
(b) Immediately upon the action of a
majority of the Company's Board of Directors electing to
exchange any Rights pursuant to Section 33(a) and without any
further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Units
of Preferred Stock equal to the number of such Rights held by
such holder multiplied by the Section 33(a)(i) Exchange Ratio
or Section 33(a)(ii) Exchange Ratio, as the case may be. The
Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice that is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange shall state the method by
which the exchange of Units of Preferred Stock for Rights will
be effected and, in the event of any partial exchange, the
number of Rights that will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights
(other than Excluded Rights) held by each holder of Rights.
(c) In the event that the number of shares
of Preferred Stock or Common Stock that are authorized by the
Company's Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of
the Rights are not sufficient to permit any exchange of Rights
as contemplated in accordance with this Section 33, the
Company shall take all such action as may be necessary to
authorize additional shares of
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Preferred Stock or Common Stock, as the case may be, for
issuance upon exchange of the Rights or make adequate
provision to substitute (1) cash, (2) Company Common Stock or
other equity securities of the Company, (3) debt securities of
the Company, (4) other assets or (5) any combination of the
foregoing, having an aggregate value equal to the Adjustment
Spread, where such aggregate value has been determined by a
majority of the Board of Directors of the Company.
(d) The Company shall not be required to
issue fractions of Units of Preferred Stock or to distribute
certificates that evidence fractional Units. In lieu of
fractional Units, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are
exchanged as herein provided an amount in cash equal to the
same fraction of the current market price (determined pursuant
to Section 11(b)) of one Unit of Preferred Stock.
The remainder of the Rights Agreement shall remain unchanged,
and the Rights Agreement, so amended above, shall remain in full force and
effect.
This amendment shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed entirely within such state.
IN WITNESS WHEREOF, the parties have duly executed this
Amendment to the Rights Agreement as of the day and year first above written.
FLOWSERVE CORPORATION
By: /s/ Ronald F. Shuff
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Name: Ronald F. Shuff
Title: Vice President, Secretary
and General Counsel
NATIONAL CITY BANK
By: /s/ J. Dean Pilesson
-----------------------------------
Name: J. Dean Pilesson
Title: Vice President
