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As Filed with the Securities and Exchange Commission on December 22, 1998
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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KUHLMAN CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 58-2058047
(State of Incorporation or Organization) (IRS Employer Identification No.)
3 Skidaway Village Square
Savannah, Georgia 31411
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box: /X/ check the following box: / /
Securities Act Registration Statement File Number to which this form relates:
Not Applicable
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 Stock Purchase Rights New York Stock Exchange
Securities to be Registered pursuant to Section 12(g) of the Act:
Not Applicable
(Title of Class)
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The undersigned registrant hereby amends Items 1 and 2 of its
Registration Statement on Form 8-A (File No. 1-7695), filed with the Securities
and Exchange Commission on April 25, 1997, as set forth below.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The securities being registered are Preferred Stock Purchase Rights
(the "Rights"). On April 24, 1997 (the "Rights Dividend Declaration Date"), the
Board of Directors of Kuhlman Corporation (the "Company") declared a dividend
distribution of one Right (a "Right") for each outstanding share of Common
Stock, par value $1.00 per share, of the Company (the "Common Stock") to
stockholders of record at the close of business on April 30, 1997 (the "Record
Date"). At April 18, 1997, there were 13,846,571 shares of Common Stock issued
(including 72,388 shares held in treasury) and 2,194,528 shares of Common Stock
authorized but unissued. No shares of Preferred Stock of any series were
authorized for issuance or issued other than the Series A Preferred Stock
referred to below.
Under certain circumstances, each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of Junior
Participating Preferred Stock, Series A, no par value, of the Company (the
"Series A Preferred Stock") or, in certain circumstances, either Common Stock or
common stock of an acquiring company at one-half of its market price. The Rights
are designed to make it more likely that all of the Company's stockholders
receive fair and equal treatment in the event of any proposed takeover of the
Company and to guard against the use of coercive tactics to gain control of the
Company. The Rights also provide protection against a controlling stockholder
taking advantage of its position by engaging in transactions for its benefit and
to stockholders' detriment. The description and terms of the Rights are set
forth in a Rights Agreement dated as of April 30, 1997 (the "Rights Agreement")
between the Company and Harris Trust and Savings Bank, as Rights Agent (the
"Rights Agent").
Exercise Price
When exercisable, except as set forth below, each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Preferred Stock at a price of $80.00 (the "Purchase Price"), subject to
adjustment in certain circumstances.
Transfer and Detachment
Initially, the Rights will not be exercisable, certificates
representing the Rights will not be sent to stockholders, and the Rights will
trade automatically with the Common Stock. The Rights will separate from the
Common Stock and certificates representing the Rights will be distributed upon
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the earlier of (i) 10 business days following the date (the "Stock Acquisition
Date") of a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common Stock and
(ii) 10 business days following the commencement or announcement of an intention
to make a tender offer or exchange offer which, if successful, would cause the
bidder to own 15% or more of the outstanding Common Stock (the earlier of such
dates being called the "Distribution Date"). The Company expects that the Rights
will begin to trade independently at that time. At no time, however, will the
Rights have any voting power. Until the Distribution Date, (i) the Rights will
be evidenced by the Common Stock certificates and will be transferred with and
only with the Common Stock, (ii) new Common Stock certificates issued after the
Record Date, upon transfer or new issuance of the Common Stock, will contain a
notation incorporating the Rights Agreement by reference, and (iii) the
surrender for transfer of any of the Common Stock certificates will also
constitute the transfer of the Rights associated with the shares of Common Stock
represented by such certificates.
Exercisability
The Rights are not exercisable until the Distribution Date. The Rights
will expire on April 30, 2007 (the "Final Expiration Date"), unless earlier
redeemed by the Company as described below.
Right to Acquire Stock at Half Price
In the event (a "Section 11(a)(ii) Event") that any person becomes an
Acquiring Person at any time after the Rights Dividend Declaration Date
(otherwise than pursuant to a tender offer or exchange offer for all outstanding
shares of Common Stock at a price and on terms that are determined to be fair
and in the best interests of the Company and its stockholders by a majority of
the members of the Board of Directors of the Company who are not Acquiring
Persons or representatives or nominees of or affiliated or associated with an
Acquiring Person), after the Distribution Date each holder of a Right will have
the right to receive, upon exercise, shares of Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a value
equal to two times the Purchase Price of the Right then in effect. For example,
if at the time of a Section 11(a)(ii) Event the Common Stock has a per share
value of $40.00, then the holder of each Right (other than the Acquiring Person)
would be entitled to receive four shares of Common Stock for $80.00 (i.e., at a
50% discount). 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.
In the event (a "Section 13 Event") that, following the Stock
Acquisition Date, (i) the Company is acquired in a merger or other business
combination transaction or (ii) 50% or more
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of the Company's assets, cash flow or earning power is sold or transferred,
then, except as otherwise provided in the Rights Agreement, each holder of a
Right (except Rights that have been voided) shall thereafter have the right to
receive, upon exercise, the common stock (or other capital stock) of the
acquiring company having a value equal to two times the exercise price of the
Right then in effect.
Adjustments
The Purchase Price payable, and the number of shares of Series A
Preferred Stock (or other securities or property) 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 Series A Preferred Stock, (ii) upon the grant to
holders of the Series A Preferred Stock of certain rights or warrants to
subscribe for Series A Preferred Stock or convertible securities at less than
the current market price of the Series A Preferred Stock or (iii) upon the
distribution to holders of the Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular periodic cash dividends) or of
subscription rights or warrants (other than those referred to above). The number
of Rights and number of shares of Series A Preferred Stock issuable upon the
exercise of each Right are also subject to adjustment in the event of a stock
split, combination or stock dividend on the Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until the time at which cumulative adjustments require an adjustment of
at least 1% of the Purchase Price. No fractional shares of Series A Preferred
Stock will be issued (other than fractions that are integral multiples of one
one-hundredth of a share of Series A Preferred Stock, which may, upon the
election of the Company, be evidenced by depositary receipts), and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Series A Preferred Stock on the last trading date prior to the date of exercise.
Redemption
At any time prior to the close of business on the earliest to occur of
(i) the Stock Acquisition Date, (ii) the Distribution Date and (iii) the Final
Expiration Date, the Company may, at its option, by resolution of its Board of
Directors, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.001 per Right, subject to adjustment (the "Redemption
Price"). Immediately upon the action of the Board of Directors of the Company
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price.
Series A Preferred Stock
Each share of Series A Preferred Stock purchasable upon exercise of the
Rights will be entitled to receive, subject to a minimum dividend of $60 per
year, a dividend of 100 times the
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dividend declared on the shares of Common Stock. In the event of liquidation,
the holders of the shares of Series A Preferred Stock will be entitled to
receive, subject to a minimum liquidation payment of $100 per share, an
aggregate liquidation payment equal to 100 times the payment made per share of
Common Stock. Each share of Series A Preferred Stock will have one hundred
votes, voting together with the shares of Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Series A Preferred Stock will be entitled to receive
100 times the amount and type of consideration received per share of Common
Stock. The rights of the shares of Series A Preferred Stock as to dividends and
liquidation, and in the event of mergers and consolidation, are protected by
antidilution provisions.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. 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 if the Rights become exercisable for
Common Stock (or other consideration) of the Company or for common stock of an
acquiring company as set forth above.
Amendments
Prior to the first to occur of the Stock Acquisition Date and the
Distribution Date, and subject to the last sentence of this paragraph, the
Company may, by resolution of its Board of Directors, amend any provision of the
Rights Agreement in any respect whatsoever without the approval of any Common
Stock holders. From and after the first to occur of the Stock Acquisition Date
and the Distribution Date, and subject to the last sentence of this paragraph,
the Company may, by resolution of its Board of Directors (which resolution shall
be effective only with the concurrence of a majority of the Continuing Directors
and only if the Continuing Directors constitute a majority of the number of
directors then in office), amend the Rights Agreement without the approval of
any holders of Rights in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained therein that may be defective or inconsistent
with any other provisions therein, (iii) to shorten or lengthen any time period
provided for therein or (iv) to supplement or amend any other provisions of the
Rights Agreement in any manner that the Company may deem necessary or desirable
and that shall not adversely affect the interests of the holders of Rights
(other than an Acquiring Person or an affiliate or associate of an Acquiring
Person); provided, however, that the Rights Agreement may not be amended to
lengthen, pursuant to clause (iii), (A) a time period relating to when the
Rights may be redeemed or to modify the ability (or inability) of the Board of
Directors of the Company to redeem the Rights, in either case at such time as
the Rights are not then redeemable, or (b) any other time period provided for
herein unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of or the benefits to the holders of the Rights (other
than an Acquiring Person or an affiliate or associate of any such Person).
Notwithstanding anything in the Rights
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Agreement to the contrary, no amendment shall be made on or after the first to
occur of the Stock Acquisition Date and the Distribution Date that changes the
Redemption Price, the Final Expiration Date, the Purchase Price or the number of
one-hundredths of a share of Preferred Stock for which a Right is then
exercisable.
The term "Continuing Directors" means any member of the Board of
Directors of the Company who was a member of the Board at the date of the Rights
Agreement, 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 Persons.
The foregoing description of the Rights and of the Series A Preferred
Stock is qualified by reference to the Rights Agreement, which is attached
hereto as Exhibit (1) and is incorporated herein by reference.
First Amendment to the Rights Agreement
The First Amendment provides, among other things, that neither
Borg-Warner Automotive, Inc., a Delaware corporation ("BWA"), BWA Merger Corp.,
a Delaware corporation and a wholly-owned subsidiary of BWA ("Merger Sub"), nor
any of their Affiliates or Associates will be deemed to be an Acquiring Person
by virtue of the approval, execution or delivery of the Agreement and Plan of
Merger dated as of December 17, 1998, as may be amended from time to time, among
BWA, Merger Sub and the Company (the "Merger Agreement") or the consummation of
the transactions contemplated thereby.
The First Amendment also adds a new Section 34 to the Rights Agreement,
providing that, notwithstanding any other provision of the Rights Agreement, as
amended by the First Amendment, neither the approval, execution or delivery of
the Merger Agreement nor the consummation of the transactions contemplated
thereby is or shall be deemed to be an event described in Section 11(a)(ii) or
Section 13 of the Rights Agreement, nor will such performance or consummation
result in the occurrence of a Stock Acquisition Date, a Distribution Date or any
other separation of the Rights from the underlying shares of Common Stock, nor
entitle or permit the holders of the Rights to exercise the Rights or otherwise
affect the rights of the holders of Rights, including giving the holders of the
Rights the right to acquire securities of any party to the Merger Agreement. New
Section 34 also provides for termination of the Rights Agreement immediately
prior to the Effective Time of the Merger.
If the Merger Agreement is terminated without the effective time of the
Merger having occurred, the First Amendment will be null and void.
The foregoing summary description of the First Amendment is qualified
in its entirety by reference to the full text of the First Amendment, which is
filed as Exhibit (2) hereto and is incorporated herein by reference.
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ITEM 2. EXHIBITS
(1) Rights Agreement, dated as of April 30, 1997, by and between
Kuhlman Corporation and Harris Trust and Savings Bank. The Rights
Agreement includes the terms of the Junior Participating Preferred
Stock, Series A, as Exhibit A thereto and the form of Right
Certificate as Exhibit B thereto [Incorporated by reference to
Exhibit (1) to the Registrant's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on April 25, 1997
(SEC File No. 1-7695)]
(2) First Amendment, dated as of December 17, 1998, to the Rights
Agreement, dated as of April 30, 1997, by and between Kuhlman
Corporation, a Delaware corporation, and Harris Trust and Savings
Bank.
[signature page follows]
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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, thereunto duly authorized.
Dated: December 22, 1998
KUHLMAN CORPORATION
By: /s/ Robert S. Jepson, Jr.
-----------------------------
Name: Robert S. Jepson, Jr.
Title: Chairman and Chief
Executive Officer
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EXHIBIT LIST
(1) Rights Agreement, dated as of April 30, 1997, by and between Kuhlman
Corporation and Harris Trust and Savings Bank. The Rights Agreement
includes the terms of the Junior Participating Preferred Stock, Series
A, as Exhibit A thereto and the form of Right Certificate as Exhibit B
thereto [Incorporated by reference to Exhibit (1) to the Registrant's
Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on April 25, 1997 (SEC File No. 1-7695)]
(2) First Amendment, dated as of December 17, 1998, to the Rights
Agreement, dated as of April 30, 1997, by and between Kuhlman
Corporation, a Delaware corporation, and Harris Trust and Savings Bank.
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EXHIBIT (2)
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of December 17, 1998, to
the Rights Agreement, dated as of April 30, 1997 (the "Rights Agreement"), by
and between Kuhlman Corporation, a Delaware corporation (the "Company"), and
Harris Trust and Savings Bank, an Illinois banking association, as Rights Agent
(the "Rights Agent").
RECITALS
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. Pursuant to Section 26 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 26 thereof.
C. The Company proposes to enter into an Agreement and Plan of
Merger, dated as of December 17, 1998 (as it may be further amended or
supplemented from time to time, the "Merger Agreement") among Borg-Warner
Automotive, Inc. ("BWA"), BWA Merger Corp. ("BWA Sub") and the Company, with
respect to a business combination of the Company and BWA (the "Merger").
D. The Merger Agreement contemplates that the Company will amend the
Rights Agreement to the extent necessary to provide that the execution of the
Merger Agreement and the consummation of the transactions contemplated thereby
will not (i) cause BWA or BWA Sub to become an Acquiring Person or (ii) cause
the occurrence of a Stock Acquisition Date or Distribution Date or Triggering
Event; and that the Rights Agreement will expire immediately prior to the
Effective Time of the Merger.
E. The Board of Directors has determined that it is in the best
interest of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger and the Merger Agreement, and all of the transactions
contemplated thereby, from the application of the Rights Agreement.
AGREEMENT
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended by adding the following proviso at the end of the first sentence
thereof:
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"; provided that neither Borg-Warner Automotive, Inc., a Delaware
corporation ("BWA"), BWA Merger Corp., a Delaware corporation and
a wholly-owned subsidiary of BWA ("BWA Sub"), nor any of their
Affiliates or Associates shall be deemed to be an Acquiring Person
by virtue of the approval, execution or delivery of the Agreement
and Plan of Merger dated as of December 17, 1998, as may be
amended from time to time, among BWA, BWA Sub and the Company (the
"BWA Merger Agreement") or the consummation of the transactions
contemplated thereby."
2. The Rights Agreement is hereby further modified and amended by
adding a new Section 34 to the end thereof to read in its entirety as follows:
"Section 34. Merger Agreement with Borg-Warner Automotive, Inc.
Notwithstanding any other provision of this Agreement, (i) neither
the approval, execution or delivery of the BWA Merger Agreement
nor the consummation of the transactions contemplated thereby is
or shall be deemed to be a Section 11(a)(ii) Event or Section 13
Event, nor will such performance or consummation result in the
occurrence of a Stock Acquisition Date, a Distribution Date or any
other separation of the Rights from the underlying Common Stock,
nor entitle or permit the holders of the Rights to exercise the
Rights or otherwise affect the rights of the holders of Rights,
including giving the holders of the Rights the right to acquire
securities of any party to the BWA Merger Agreement; and (ii)
immediately prior to the Effective Time (as such term is defined
in the BWA Merger Agreement) this Agreement shall be terminated
and deemed null and void and of no effect."
3. This Amendment shall be effective as of the date hereof; provided
that if the Merger Agreement is terminated without the Effective Time (as such
term is defined in the Merger Agreement) having occurred, this Amendment shall
be null and void and of no effect.
4. 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.
5. This Amendment may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
one and the same instrument.
6. Terms not defined herein shall, unless the context otherwise
requires, have the
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meanings assigned to such terms in the Rights Agreement.
7. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: KUHLMAN CORPORATION
By: /s/ Richard A. Walker By: /s/ Robert S. Jepson, Jr.
--------------------- -------------------------
Name: Richard A. Walker Name: Robert S. Jepson, Jr.
Title: Secretary Title: Chairman and Chief
Executive Officer
Attest: HARRIS TRUST AND SAVINGS BANK
By: /s/ Alma Menendez By: /s/ Richard Carlson
----------------- -------------------
Name: Alma Menendez Name: Richard Carlson
Title: Assistant Vice President Title: Vice President
