SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Empire of Carolina, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-2999480
(State of incorporation or organization) (IRS Employer
Identification No.)
5150 Linton Boulevard, Delray Beach, Florida 33484
(Address of principal executive offices) (Zip Code)
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(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Preferred Share Purchase Rights American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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Item 1. Description of Securities to be Registered.
On May 5, 1997, Empire of Carolina, Inc., a Delaware corporation (the
"Company") and American Stock Transfer & Trust Company, a New York corporation,
as Rights Agent (the "Rights Agent"), adopted the First Amendment (the
"Amendment") to the Rights Agreement dated as of September 11, 1996 (the "Rights
Agreement") between the Company and the Rights Agent. The Amendment to the
Rights Agreement is attached as an exhibit hereto, and is incorporated herein by
reference. Except as incorporated by reference herein, the description of the
Rights Agreement set forth in the Registration Statement on Form 8-A filed by
the Company with the Securities and Exchange Commission on September 12, 1996
remains in full force and effect.
Item 2. Exhibits.
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Exhibit
Number Description
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1 Rights Agreement, dated as of September 11, 1996, between
Empire of Carolina, Inc. and American Stock Transfer &
Trust Company as Rights Agent, which includes (i) as
Exhibit A thereto the form of Certificate of Designation of
the Series B Junior Participating Preferred Stock, (ii) as
Exhibit B thereto the form of Right certificate (separate
certificates for the Rights will not be issued until after
the Distribution Date) and (iii) as Exhibit C thereto the
Summary of Stockholder Rights Agreement (incorporated by
reference from the Registration Statement on Form 8-A filed
with the Commission on September 12, 1996).
2 First Amendment dated as of May 5, 1997, to Rights
Agreement, dated as of September 11, 1996, between Empire
of Carolina, Inc. and American Stock Transfer & Trust
Company as Rights Agent.
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Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
Date: May 5, 1997 EMPIRE OF CAROLINA, INC.
By: /s/ Steven Geller
Name: Steven Geller
Title: Chairman and Chief Executive Officer
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EXHIBIT INDEX
===============================================================================
Exhibit
Number Description
- -------------------------------------------------------------------------------
1 Rights Agreement, dated as of September 11, 1996, between
Empire of Carolina, Inc. and American Stock Transfer &
Trust Company as Rights Agent, which includes (i) as
Exhibit A thereto the form of Certificate of Designation of
the Series B Junior Participating Preferred Stock, (ii) as
Exhibit B thereto the form of Right certificate (separate
certificates for the Rights will not be issued until after
the Distribution Date) and (iii) as Exhibit C thereto the
Summary of Stockholder Rights Agreement (incorporated by
reference from the Registration Statement on Form 8-A filed
with the Commission on September 12, 1996).
2 First Amendment dated as of May 5, 1997, to Rights
Agreement, dated as of September 11, 1996, between Empire
of Carolina, Inc. and American Stock Transfer & Trust
Company as Rights Agent.
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EXHIBIT 2
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT to the Rights Agreement (the "Rights Agreement") dated
as of September 11, 1996, between Empire of Carolina, Inc. and American Stock
Transfer & Trust Company as Rights Agent ("American Stock Transfer") is dated as
of the 5th day of May 1997.
WHEREAS, the Company, HPA Associates, L.L.C., a Delaware limited
liability company ("HPA"), and EMP Associates L.L.C., a Delaware limited
liability company (collectively with HPA, the "Investors") propose to enter into
that certain Securities Purchase Agreement dated as of May 5, 1997 between the
Company and the Investors (the "Securities Purchase Agreement"), and following
the consummation of the transactions contemplated thereby the Investors will be
significant stockholders of the Company; and
WHEREAS, the Board of Directors of the Company believes that it is in
the best interests of the Company and its stockholders that the Rights Agreement
be amended as set forth herein; and
WHEREAS, Section 27 of the Rights Agreement authorizes the Board of
Directors of the Company and the Rights Agent to adopt the proposed amendment
without the approval of the Company's stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties agree to amend the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended by deleting
the words "and (iii)" from the second sentence thereof and substituting the
following therefor:
(iii) no Person who or which was an Exempt Person prior to the adoption
of the First Amendment dated as of May 5, 1997 (the "Amendment") to the
Rights Agreement shall be deemed to be an "Acquiring Person" for
purposes of this Agreement; provided, however, that if any such Person
ceases to be an Exempt Person following the adoption of the Amendment,
after 5:00 p.m., New York time, on May 7, 1997, (A) acquires beneficial
ownership of any additional Common Shares and (B) beneficially owns
after such acquisition 15% or more of the aggregate number of Common
Shares of the Company then outstanding, then such Person shall be
deemed to be an "Acquiring Person," and (iv)
2. Section 1(k) of the Rights Agreement is hereby amended by deleting
Section 1(k) thereof in its entirety and substituting the following therefor:
(k) "Exempt Person" means (i) the Company; (ii) any
Subsidiary of the Company; (iii) any employee benefit plan of the
Company or any Subsidiary of
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the Company, or any entity holding Common Shares of the Company for or
pursuant to the terms of any such plan or related trust; (iv) Steven E.
Geller ("Geller"), WPG Corporate Development Associates IV, L.P., a
Delaware limited partnership, WPG Corporate Development Associates IV
(Overseas), L.P., a Cayman Islands limited partnership, Westpool
Investment Trust plc, Glenbrook Partners, L.P. and any Affiliate of any
of the foregoing Persons; (v) Geller and any descendant of Geller, or
any spouse, widow or widower of Geller or of any such descendant
(Geller and any such descendants, spouses, widows and widowers
collectively defined as the "Family Members"); (vi) any trust of which
Geller is a trustee; (vii) any estate of a Family Member, or any trust
established by or for the benefit directly or indirectly of one or more
Family Members provided that one or more Family Members or charitable
organizations which qualify as exempt organizations under Section
501(c) of the Internal Revenue Code of 1986, as amended ("Charitable
Organizations") collectively are the beneficiaries of at least 50% of
the actuarially-determined beneficial interest in such estate or trust;
(viii) any Charitable Organization which is established by one or more
Family Members (a "Family Charitable Organization"); (ix) any
corporation of which a majority of the voting power or a majority of
the equity interest is held, directly or indirectly, by or for the
benefit of one or more Family Members, estates or trusts described in
clause (vii) above, or Family Charitable Organizations; (x) any
partnership, limited liability company or other entity or arrangement
of which a majority of the voting interest or a majority of the
economic interest is held, directly or indirectly, by or for the
benefit of one or more Family Members, estates or trusts described in
clause (vii) above, or Family Charitable Organizations; (xi) HPA
Associates, L.L.C., a Delaware limited liability company ("HPA"), and
EMP Associates, L.L.C., a Delaware limited liability company
(collectively with HPA, the "Investors"), and their respective
Affiliates, from and after the execution of that certain Securities
Purchase Agreement between the Company and the Investors to be dated as
of May 5, 1997 (the "Securities Purchase Agreement"); provided that (A)
if the Investors or their respective Affiliates acquires beneficial
ownership of any Common Shares other than in a transaction with the
Company or with the written consent of the Company from and after the
execution of the Securities Purchase Agreement and prior to the
consummation of the investment by the Investors contemplated by the
Securities Purchase Agreement, then the Investors and their Affiliates
shall not be deemed to be "Exempt Persons" at any time after such
acquisition of beneficial ownership, or (B) if the investment by
Investor contemplated by the Securities Purchase Agreement is not
consummated, then the Investors and their respective Affiliates shall
not be deemed to be "Exempt Persons" at any time after the Securities
Purchase Agreement terminates in accordance with its terms, and (xii)
any trustee, executor, direct or indirect managing or general partner
or other Person who has or shares voting and/or investment power over
Common Shares beneficially owned by any of the foregoing Persons solely
in their capacities as such.
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3. Capitalized terms used but not defined herein shall have the meaning
assigned to such terms in the Rights Agreement.
4. Except as expressly amended hereby, the Rights Agreement remains
in full force and effect.
5. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware, and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and performed entirely within such State.
6. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
EMPIRE OF CAROLINA, INC.
Attest:
By /s/ Lawrence Geller By /s/ Steven Geller
Name: Lawrence Geller Name: Steven Geller
Title: General Counsel and Secretary Title: Chairman and Chief
Executive Officer
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest:
By (signature) By /s/ Herbert J. Lemmer
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Name: Name: Herbert J. Lemmer
Title: Title: Vice President
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