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 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 1
Kemper Corporation
______________________________________________________
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 36-6169781
_______________________________________ ________________________
(State of incorporation or organization (I.R.S. Employer
Identification No.)
</TABLE>
<TABLE>
<S> <C>
Long Grove, Illinois 60049
_______________________________________ __________________
(Address of principal executive offices) (Zip Code)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
___________________ _____________________________
Preferred Stock Purchase Rights New York Stock Exchange
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
_________________________________________________________________________
None
_________________________________________________________________________
(Title of Class)
1
Item 1. Description of Registrant's Securities to be Registered
On June 26, 1994, Kemper Corporation (the "Company"), Conseco, Inc.
("Conseco") and KC Acquisition, Inc., a wholly owned subsidiary of Conseco
("KC Acquisition"), entered into an Agreement and Plan of Merger, dated as
of June 26, 1994 (the "Merger Agreement"), providing, among other things,
for the merger (the "Merger") of KC Acquisition with and into the Company.
On such date, in connection with the Merger Agreement, the Company executed
the First Amendment (the "Rights Amendment") to the Rights Agreement, dated
as of July 18, 1990, between the Company and Harris Trust and Savings Bank,
as the Rights Agent (the "Rights Agent"). The Rights Amendment provides
that neither Conseco nor KC Acquisition shall be deemed an "Acquiring
Person", and that no "Distribution Date" or "Stock Acquisition Date" (as
such terms are defined in the Rights Agreement) shall be deemed to have
occurred, solely as the result of the approval, execution or delivery of
the Merger Agreement or the consummation of the Merger pursuant to the
Merger Agreement. A summary of the Rights, as amended, follows.
Summary of Rights
On July 18, 1990, the Board of Directors of the Company declared a dividend
distribution of one Right for each outstanding share of the Company's
common stock (the "Common Stock"), payable July 30, 1990, to stockholders
of record at the close of business on that date. Each Right entitles the
registered holder to purchase from the Company a unit consisting of one
two-hundredth of a share (a "Unit") of Series B Junior Participating
Preferred Stock, without par value (the "Preferred Stock"), at a Purchase
Price of $220 per Unit, subject to adjustment. The description and terms
of the Rights are set forth 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 and
the "Distribution Date" of the Rights will occur upon the earlier of (i) 10
business 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 date of such announcement being 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. Lumbermens Mutual Casualty Company, so long as it holds
more than 20% of the Common Stock, has been specifically excluded from the
definition of an Acquiring Person, thereby ensuring that the Rights will
not become exercisable immediately upon issuance solely due to Lumbermens'
holdings. However, a purchaser or other transferee of shares of Common
Stock owned by Lumbermens will be deemed an Acquiring Person unless (i)
during the three months preceding such transfer from Lumbermens, the
transferee did not own more than 1% of the outstanding shares of Common
2
stock and (ii) following the Lumbermens transfer, for so long as the
transferee owns 20% or more of the Common Stock, the transferee refrains
from acquiring additional shares of Common Stock and from engaging in
certain transactions described below. Notwithstanding the foregoing,
neither Conseco nor KC Acquisition shall be deemed an "Acquiring Person,"
and no "Distribution Date" or "Stock Acquisition Date" shall be deemed to
have occurred, solely as the result of the approval, execution or delivery
of the Merger Agreement or the consummation of the Merger pursuant to the
Merger Agreement.
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 July
30, 1990 will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificate 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 July 29, 2000, unless earlier redeemed by the
Company as described below. Holding unexercised Rights alone gives rise to
no rights as a stockholder of the Company, including, without limitation,
any right to vote or to receive dividends.
As soon as practicable after the Distribution Date (if one occurs), Rights
certificates will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date, and, thereafter, the
separate Rights certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, no shares of Common Stock
issued after the Distribution Date will be issued with Rights.
In the event that, at any time following the Distribution Date, (i) the
Company (or its subsidiary) is the surviving corporation in a merger,
consolidation or other business combination with an Acquiring Person or a
transferee from Lumbermens holding 20% or more of the outstanding shares of
Common Stock and the Common Stock is not changed or exchanged, (ii) any
person other than Lumbermens or a qualified purchaser from Lumbermens
becomes the beneficial owner of more than 20% of the then outstanding
shares of Common Stock (other than pursuant to a tender offer or exchange
offer for all outstanding shares of Common Stock at a price and on terms
determined by the independent members of the Board of Directors to be fair
to stockholders and otherwise in the best interests of the Company), (iii)
an Acquiring Person, or in certain instances a transferee from Lumbermens
holding 20% or more of the outstanding shares of Common Stock, 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 or a
transferee from Lumbermens holding 20% or more of the outstanding shares of
Common Stock, an event occurs which results in such person's ownership
interest being increased by more than 1% (e.g., a reverse stock split),
each holder of a Right will thereafter have the right to receive, upon
3
exercise, Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to two times the
exercise price of the Right. Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in this paragraph,
all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be
null and void. 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 $220 per Right, each Right not owned
by an Acquiring Person or certain transferees from Lumbermens (or by
certain related parties) following an event set forth in the preceding
paragraph would entitle its holder to purchase $440 worth of Common Stock
(or other consideration, as noted above) for $220. Assuming that the
Common Stock had a per share value of $55 at such time, the holder of each
valid Right would be entitled to purchase eight shares of Common Stock for
$220.
In the event that, at any time following any Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination
transaction (other than the Merger, a business combination described in the
second preceding paragraph or a merger which follows a tender or exchange
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 holder
of a Right (except Rights which are voided because they would be held by an
Acquiring Person) 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. These rights may also be triggered
if the acquiring company is a transferee from Lumbermens holding 20% or
more of the outstanding shares of Common Stock. The events set forth in
this paragraph and in the second preceding paragraph are referred to as the
"Triggering Events."
The Purchase Price payable, and the number of Units of Preferred Stock or
Common Stock or other securities or property issuable, upon exercise of the
Rights are subject to certain customary adjustments from time to time to
prevent dilution. With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional Units will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of
the Preferred Stock on the last trading date prior to the date of
exercise.
At any time until ten business days following the Stock Acquisition Date,
the Company may redeem the Rights in whole, but not in part, at a price of
$.01 per Right, payable, at the election of the Company, in cash, shares of
Common Stock or such other consideration as the Board of Directors may
determine. After the redemption period has expired, the Company's right to
redemption may be reinstated if each Acquiring Person reduces its
beneficial ownership to 10% or less of the outstanding shares of Common
4
Stock in a transaction or series of transactions not involving the Company.
Immediately upon the action of the Board of Directors ordering redemption
of the Rights, the Rights will terminate, and the only right of the holders
of Rights will be to receive the $.01 redemption price.
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 (or other consideration) of the Company or for common
stock of the acquiring company.
Any of the provisions of the Rights Agreement may be amended by the
independent directors of the Company prior to the Stock Acquisition Date.
After the Stock Acquisition Date, the provisions of the Rights Agreement
may be amended by the independent directors in order to cure any ambiguity,
defect or inconsistency, 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.
As long as the Rights are attached to the Common Stock, the Company will
issue one Right for each share of Common Stock issued (or delivered from
treasury) between July 30, 1990 and the Distribution Date so that all such
shares will have attached Rights. In addition, following the Distribution
Date and prior to the expiration or redemption of the Rights, the Company,
subject to certain limitations, will issue one Right for each share of
Common Stock issued or sold pursuant to the exercise of stock options or
under employee plans or upon the exercise, conversion or exchange of
certain securities of the Company, and may issue Rights in certain other
circumstances. 500,000 shares of Preferred Stock will be reserved for
issuance upon exercise 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 a substantial number of Rights
being acquired. The Rights should not interfere with any merger (such as
the Merger) or other business combination approved by the Board.
A copy of the Rights Agreement specifying the terms of the Rights, which
includes as Exhibit A a copy of the Certificate of Designations,
Preferences and Rights relating to the Series B Preferred Stock and as
Exhibit B the Form of Rights Certificate, has been filed as an Exhibit to
the Company's Registration Statement on Form 8-A. The foregoing
description of the Rights does not purport to be complete and is qualified
5
in its entirety by reference to the Rights Agreement, which is incorporated
in the foregoing description by reference. All capitalized terms not
defined herein shall have the meanings ascribed to them in the Rights
Agreement, as amended.
Item 2. Exhibits.
1.1 Form of Rights Agreement, dated as of July 18, 1990, between Kemper
Corporation and Harris Trust and Savings Bank which includes: (i) as
Exhibit A thereto a copy of the Certificate of Designations, Preferences
and Rights relating to the Series B Preferred Stock, and (ii) as Exhibit B
thereto the Form of Rights Certificate. Pursuant to the Rights Agreement,
Rights Certificates will not be mailed until after the earlier of (i) the
tenth business day after the Stock Acquisition Date or (ii) the tenth
business day after the date of the commencement of a tender offer or
exchange offer by any person or group of affiliated or associated persons,
if upon consummation thereof, such person or group would be the beneficial
owner of 30% or more of the Company's outstanding Common Stock.
(Incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A filed July 20, 1990).
2. First Amendment to Rights Agreement, dated as of June 26, 1994, between
Kemper Corporation and Harris Trust and Savings Bank.*
____________________
* Filed herewith
6
SIGNATURE
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.
KEMPER CORPORATION
DATED: July 20, 1994 By: /S/ KATHLEEN A. GALLICHIO
_____________________
Name: Kathleen A. Gallichio
Title: Senior Vice President,
Corporate Secretary and
General Counsel
7
EXHIBIT INDEX
Exhibit No. Description
___________
1.1 Form of Rights Agreement, dated as of July 18, 1990, between
Kemper Corporation and Harris Trust and Savings Bank which includes: (i) as
Exhibit A thereto a copy of the Certificate of Designations, Preferences
and Rights relating to the Series B Preferred Stock, and (ii) as Exhibit B
thereto the Form of Rights Certificate. Pursuant to the Rights Agreement,
Rights Certificates will not be mailed until after the earlier of (i) the
tenth business day after the Stock Acquisition Date or (ii) the tenth
business day after the date of the commencement of a tender offer or
exchange offer by any person or group of affiliated or associated persons,
if upon consummation thereof, such person or group would be the beneficial
owner of 30% or more of the Company's outstanding Common Stock.
(Incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A filed July 20, 1990).
2. First Amendment to Rights Agreement, dated as of June 26, 1994,
between Kemper Corporation and Harris Trust and Savings Bank.*
________________
* Filed herewith
8
Exhibit 2
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT, dated as of June 26, 1994, is between KEMPER
CORPORATION, a Delaware corporation (the "Company"), and HARRIS TRUST AND
SAVINGS BANK (the "Rights Agent").
Recitals
________
A. The Company and the Rights Agent are parties to a Rights Agreement
dated as of July 18, 1990 (the "Rights Agreement").
B. Pursuant to Section 26 of the Rights Agreement, the Company and the
Rights Agent desire to amend the Rights Agreement as set forth below.
Accordingly, the parties agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
neither Conseco nor KC Acquisition shall be deemed to be an Acquiring
Person solely by virtue of (i) the approval, execution or delivery of
the Merger Agreement or (ii) the consummation of the Merger (as defined
in the Merger Agreement) pursuant to the Merger Agreement."
2. Amendment of Section 1(f). Section 1(f) of the Rights Agreement
is amended and restated to read as follows:
"(f)(i) 'Common Stock' shall mean the common stock, par value $5.00
per share, of the Company, except that "Common Stock" when used with
reference to any Person other than the Company shall mean the capital
stock of such Person with the greatest voting power, or the equity
securities or other equity interest having power to control or direct
the management, of such Person.
(f)(ii) 'Conseco' shall mean Conseco, Inc., an Indiana corporation."
3. Amendment of Section 1(i). Section 1(i) of the Rights Agreement
is amended and restated to read as follows:
"(i)(i) 'KC Acquisition' shall mean KC Acquisition Inc., a Delaware
Corporation.
(i)(ii) 'Merger Agreement' shall mean the Agreement and Plan of
Merger dated as of June 26, 1994, among Conseco, KC Acquisition and the
Company, as amended from time to time.
(i)(iii) 'Person' shall mean any individual, firm, corporation, trust,
partnership or other entity."
4. Amendment of Section 1(m). Section 1(m) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
a Distribution Date shall not be deemed to have occurred solely as the
result of (i) the approval, execution or delivery of the Merger
Agreement or (ii) the consummation of the Merger (as defined in the
Merger Agreement) pursuant to the Merger Agreement."
5. Amendment of Section 3(a). Section 3(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
a Stock Acquisition Date shall not be deemed to have occurred solely as
the result of (i) the approval, execution or delivery of the Merger
Agreement or (ii) the consummation of the Merger (as defined in the
Merger Agreement) pursuant to the Merger Agreement."
6. Effectiveness. This Amendment shall be deemed effective as of
June 26, 1994 as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
7. Miscellaneous. 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 to be made and performed entirely within such state.
This Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed an original and all such
counterparts shall together constitute but one and the same instrument. If
any provision, covenant or restriction of this Amendment is held by a court
of competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
EXECUTED as of the date set forth above.
Attest: KEMPER CORPORATION
/S/ KATHLEEN A. GALLICHIO /S/ DAVID B. MATHIS
_____________________________ _____________________________
Name: Kathleen A. Gallichio Name: David B. Mathis
Title: Corporate Secretary Title: Chairman of the Board
and Chief Executive
Officer
Attest: HARRIS TRUST AND SAVINGS BANK
/S/ RICHARD CARLSON /S/ KEITH BRADLEY
_____________________________ _____________________________
Name: Richard Carlson Name: Keith Bradley
Title: Vice President Title: Assistant Vice
President
