Draft of February 25, 1997
Registration Statement No. ________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE DIANA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of incorporation or organization)
36-2448698
(I.R.S. employer identification no.)
26025 Mureau Road
Calabasas, California
(Address of principal executive offices)
91302
(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 to be so registered - None
Name of each exchange on which each class is to be registered - N/A
Securities to be registered pursuant to section 12(g) of
the Act:
Common Stock, par value $1.00 per share
(Title of class)
Stock Purchase Rights
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Preliminary Statement: The Diana Corporation, a Delaware
corporation (the "Company"), currently has its common stock listed
on the New York Stock Exchange and registered under Section 12(b)
of the Securities Exchange Act of 1934. The Company has applied
for inclusion of its common stock in the Nasdaq National Market.
The purpose of this Registration Statement is to register the
common stock, and the related stock purchase rights, under Section
12(g) of such Act.
I. Description of Registrant's Securities to be Registered
Authorized Capital Stock
The authorized capital stock of the Company consists of
15,000,000 shares of common stock, par value $1.00 per share
("Company Common Stock"), and 5,000,000 shares of preferred stock,
$.01 per share ("the Company Preferred Stock").
As of February 25, 1997 there were 6,007,175 shares of Company
Common Stock issued (of which 5,298,483 shares were outstanding and
708,692 shares were held in treasury); an aggregate of 100,000
shares were issuable pursuant to a warrant issuable to Hambrecht &
Quist LLC, financial advisors to the Company; an aggregate of
1,000,000 shares were issuable upon conversion of membership
interests (Class A Units and Class B Units) in Sattel
Communications LLC ("Sattel"); an aggregate of 704,720 shares were
issuable pursuant to the Company's 1986 Nonqualified Stock Option
Plan; and an aggregate of 94,040 shares were issuable pursuant to
Sattel's 1996 Nonqualified Stock Option Plan. As of the same date,
there were no shares of the Company Preferred Stock outstanding.
On September 3, 1996, the Board of Directors of the Company
declared a 5% dividend payable in Company Common Stock on October
2, 1996 to holders of record of Common Stock on September 16, 1996.
Such dividend was paid with newly-issued shares of Common Stock.
As long as the Rights (as defined below) are attached to Company
Common Stock, the Company will issue one Right with each new share
of Company Common Stock so that all such shares will have Rights
attached.
Company Common Stock
Each outstanding share of Company Common Stock will be
entitled to such dividends as may be declared from time to time by
the Company's Board of Directors. Each outstanding share of
Company Common Stock is entitled to one vote on all matters
submitted to a vote of stockholders. Holders of Company Common
Stock do not have the right to cumulative voting. As a result,
holders of a majority of shares voting for the election of the
Company's Board of Directors can elect all of the directors to be
elected at such election, if they so choose. In the event of a
liquidation, dissolution or winding up of the Company, holders of
Company Common Stock are entitled to receive on a pro rata basis
any assets remaining after provision for payment of creditors and
any preferential amount payable on the Company Preferred Stock.
The Company Common Stock is not subject to conversion, sinking
fund, redemption, preemptive rights or call/assessment provisions.
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The Company's Restated Certificate of Incorporation provides
for the division of the Board of Directors into three classes with
staggered three-year terms. In addition, the Certificate of
Incorporation provides that directors may be removed only for cause
by the affirmative vote of the holders of a majority of the shares
of the corporation entitled to vote. Under the Certificate of
Incorporation, the number of directors may be changed only by (i)
the vote of a majority of the directors then in office or (ii) the
vote of at least 75% of the shares of the corporation entitled
thereon to vote, and any increase or decrease in the number of
directors must be apportioned among all classes so as to make all
classes as nearly equal in number as possible. The classification
of the Board of Directors, the limitations on the removal and the
restrictions on changing the number of directors could have the
effect of making it more difficult for a third party to acquire, or
of discouraging a third party from acquiring, control of the
Company.
Shareholder Rights Plan
On September 3, 1996, the Board of Directors of the Company
declared a dividend payable September 16, 1996 of one right (a
"Right") for each outstanding share of Company Common Stock held of
record at the close of business on September 16, 1996 (the "Record
Time"), or issued thereafter and prior to the Separation Time (as
hereinafter defined) and thereafter pursuant to options and
convertible securities outstanding at the Separation Time. The
Rights will be issued pursuant to a Stockholder Protection Rights
Agreement, dated as of September 10, 1996 (the "Rights Agreement"),
between the Company and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (the "Rights Agent"). Each Right entitles its
registered holder to purchase from the Company, after the
Separation Time, one one-hundredth of a share of Participating
Preferred Stock, par value $0.01 per share ("Participating
Preferred Stock"), for $120 (the "Exercise Price"), subject to
adjustment.
The Rights will be evidenced by Company Common Stock
certificates until the close of business on the earlier of (either,
the "Separation Time") (i) the tenth business day (or such later
date as the Board of Directors of the Company may from time to time
fix by resolution adopted prior to the Separation Time that would
otherwise have occurred) after the date on which any Person (as
defined in the Rights Agreement) commences a tender or exchange
offer which, if consummated, would result in such Person's becoming
an Acquiring Person, as defined below, and (ii) the tenth day after
the first date or such earlier or later date as the Board of
Directors may from time to time fix (the "Flip-in Date") of public
announcement by the Company or any Person that such Person has
become an Acquiring Person (the date of such public announcement
the "Stock Acquisition Date"); provided that if the foregoing
results in the Separation Time being prior to the Record Time, the
Separation Time shall be the Record Time; and provided further that
if a tender or exchange offer referred to in clause (i) is
cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of stock
pursuant thereto, such offer shall be deemed never to have been
made. An Acquiring Person is any Person having Beneficial
Ownership (as defined in the Rights Agreement) of 15% or more of
the outstanding shares of Company Common Stock, which term shall
not include (i) the Company, any wholly owned subsidiary of the
Company or any employee stock ownership or other employee benefit
plan of the Company, (ii) any person who is the Beneficial Owner of
15% or more of the outstanding Company Common Stock as of the date
of the Rights Agreement or who shall become the Beneficial Owner of
15% or more of the outstanding Company Common Stock solely as a
result of an acquisition of Company Common Stock by the Company,
until such time as such Person acquires an additional 1% of the
outstanding shares of Company Common Stock, other than through a
dividend or stock split, provided, that, for the purpose of
determining whether any Person has become the Beneficial Owner of
an additional 1% of the outstanding shares of Company Common Stock,
compensatory management stock options issued by the Company
subsequent to the date of the Rights
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Agreement shall not be included, (iii) any Person who becomes an
Acquiring Person without any plan or intent to seek or affect
control of the Company if such Person, upon notice by the Company,
promptly divests sufficient securities such that such 15% or
greater Beneficial Ownership ceases or (iv) any Person who
Beneficially Owns shares of Company Common Stock consisting solely
of (A) shares acquired pursuant to the grant or exercise of an
option granted by the Company in connection with an agreement to
merge with, or acquire, the Company at a time at which there is no
Acquiring Person, (B) shares owned by such Person and its
Affiliates and Associates at the time of such grant and (C) shares,
amounting to less than 1% of the outstanding Company Common Stock,
acquired by Affiliates and Associates of such Person after the time
of such grant. The Rights Agreement provides that, until the
Separation Time, the Rights will be transferred with and only with
the Common Stock. Company Common Stock certificates issued after
the Record Time but prior to the Separation Time shall evidence one
Right for each share of Company Common Stock represented thereby
and shall contain a legend incorporating by reference the terms of
the Rights Agreement (as such may be amended from time to time).
Notwithstanding the absence of the aforementioned legend,
certificates evidencing shares of Company Common Stock outstanding
at the Record Time shall also evidence one Right for each share of
Company Common Stock evidenced thereby. Promptly following the
Separation Time, separate certificates evidencing the Rights
("Rights Certificates") will be mailed to holders of record of
Company Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day (as
defined in the Rights Agreement) following the Separation Time.
The Rights will expire on the earliest of (i) the Exchange Time (as
defined below), (ii) the close of business on September 16, 2006,
(iii) the date on which the Rights are redeemed as described below
and (iv) upon the merger of the Company into another corporation
pursuant to an agreement entered into when there is no Acquiring
Person (in any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in
certain circumstances the securities purchasable upon exercise of
the Rights, are subject to adjustment from time to time to prevent
dilution in the event of a Company Common Stock dividend on, or a
subdivision or a combination into a smaller number of shares of,
Company Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for
Company Common Stock.
In the event that prior to the Expiration Time a Flip-in Date
occurs, the Company shall take such action as shall be necessary to
ensure and provide that each Right (other than Rights Beneficially
Owned by the Acquiring Person or any affiliate or associate
thereof, which Rights shall become void) shall constitute the right
to purchase from the Company, upon the exercise thereof in
accordance with the terms of the Rights Agreement, that number of
shares of Company Common Stock of the Company having an aggregate
Market Price (as defined in the Rights Agreement), on the Stock
Acquisition Date that gave rise to the Flip-in Date, equal to twice
the Exercise Price for an amount in cash equal to the then current
Exercise Price. In addition, the Board of Directors of the Company
may, at its option, at any time after a Flip-in Date and prior to
the time that an Acquiring Person becomes the Beneficial Owner of
more than 50% of the outstanding shares of Company Common Stock,
elect to exchange all (but not less than all) the then outstanding
Rights (other than Rights Beneficially Owned by the Acquiring
Person or any affiliate or associate thereof, which Rights become
void) for shares of Common Stock at an exchange ratio of one share
of Company Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date of the Separation Time (the "Exchange
Ratio"). Immediately upon such action by the Board of Directors
(the "Exchange Time"), the right to exercise the Rights will
terminate
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and each Right will thereafter represent only the right to receive
a number of shares of Company Common Stock equal to the Exchange
Ratio.
Whenever the Company shall become obligated, as described in
the preceding paragraph, to issue shares of Company Common Stock
upon exercise of or in exchange for Rights, the Company, at its
option, may substitute therefor shares of Participating Preferred
Stock, at a ratio of one-one hundredth of a share of Participating
Preferred Stock for each share of Company Common Stock so issuable.
In the event that prior to the Expiration Time the Company
enters into, consummates or permits to occur a transaction or
series of transactions after the time an Acquiring Person has
become such in which, directly or indirectly, (i) the Company shall
consolidate or merge or participate in a binding share exchange
with any other Person if, at the time of the consolidation, merger
or share exchange or at the time the Company enters into an
agreement with respect to such consolidation, merger or share
exchange, the Acquiring Person controls the Board of Directors of
the Company and (A) any term of or arrangement concerning the
treatment of shares of capital stock in such merger, consolidation
or share exchange relating to the Acquiring Person is not identical
to the terms and arrangements relating to other holders of Company
Common Stock or (B) the person with whom such transaction or series
of transactions occurs is the Acquiring Person or an Affiliate or
Associate thereof or (ii) the Company shall sell or otherwise
transfer (or one or more of its subsidiaries shall sell or
otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (B)
generating more than 50% of the operating income or cash flow, of
the Company and its subsidiaries (taken as a whole) to any other
Person (other than the Company or one or more of its wholly owned
subsidiaries) or to two or more such Persons which are affiliated
or otherwise acting in concert, if, at the time of such sale or
transfer of assets or at the time the Company (or any such
subsidiary) enters into an agreement with respect to such sale or
transfer, the Acquiring Person controls the Board of Directors of
the Company (a "Flip-over Transaction or Event"), the Company shall
take such action as shall be necessary to ensure, and shall not
enter into, consummate or permit to occur such Flip-over
Transaction or Event until it shall have entered into a
supplemental agreement with the Person engaging in such Flip-over
Transaction or Event or the parent corporation thereof (the
"Flip-over Entity"), for the benefit of the holders of the Rights,
providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the
right to purchase from the Flip-over Entity, upon exercise thereof
in accordance with the terms of the Rights Agreement, that number
of shares of common stock of the Flip-over Entity having an
aggregate Market Price on the date of consummation or occurrence of
such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise
Price and (ii) the Flip-over Entity shall thereafter be liable for,
and shall assume, by virtue of such Flip-over Transaction or Event
and such supplemental agreement, all the obligations and duties of
the Company pursuant to the Rights Agreement. For purposes of the
foregoing description, the term "Acquiring Person" shall include
any Acquiring Person and its Affiliates and Associates counted
together as a single Person.
The Board of Directors of the Company may, at its option, at
any time prior to the close of business on the Flip-in Date, redeem
all (but not less than all) the then outstanding Rights at a price
of $.01 per Right) (the "Redemption Price"), as provided in the
Rights Agreement. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, without any
further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only
the right to receive the Redemption Price in cash for each Right so
held.
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The holders of Rights will, solely by reason of their
ownership of Rights, have no rights as stockholders of the Company,
including, without limitation, the right to vote or to receive
dividends.
The Rights will not prevent a takeover of the Company.
However, the Rights may cause substantial dilution to a person or
group that acquires 15% or more of Company Common Stock unless the
Rights are first redeemed by the Board of Directors of the Company.
Nevertheless, the Rights should not interfere with a transaction
that is in the best interests of the Company and its stockholders
because the Rights can be redeemed on or prior to the close of
business on the Flip-in Date, before the consummation of such
transaction.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Company is
ChaseMellon Shareholder Services, L.L.C.
II. Exhibits
Pursuant to the instructions as to exhibits to Form 8-A,
the following exhibits are being filed with this Registration
Statement:
1. Restated Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibit 3.1 of
Registrant's Form 10-K for the fiscal year ended April 3,
1993).
2. By-laws of the Registrant (incorporated herein by
reference to Exhibit 3.1 of the Form 10-Q for the period
ended July 20, 1996).
3. Rights Agreement (incorporated herein by reference to
Exhibit 1 to the Registration Statement on Form 8-A filed
September 11, 1996).
4. Forms of Rights Certificate and of Election to Exercise,
included in Exhibit A to the Rights Agreement, see
Exhibit 3 above.
5. Form of Certificate of Designation and Terms of
Participating Preferred Stock, included in Exhibit B to
the Rights Agreement, see Exhibit 3 above.
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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.
THE DIANA CORPORATION
By: /s/ Daniel W. Latham
Name: Daniel W. Latham
Title: President
Dated: February 26, 1997
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