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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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
NORSTAN, INC.
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(Exact name of registrant as specified in its charter)
Minnesota 41-0835746
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(State of incorporation or (I.R.S. Employer Identification No.)
organization)
605 NORTH HIGHWAY 169, TWELFTH FLOOR,
PLYMOUTH, MINNESOTA 55441
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(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 upon Exchange Act and is effective
filing pursuant to General pursuant to General Instruction
Instruction A.(c) please check the A.(d)(2) please check the following
following box. / / box. /X/
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:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None.
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On May 17, 1988, the Board of Directors of Norstan, Inc. (the "Company")
declared a dividend of one Right for each outstanding share of Common Stock of
the Company to the stockholders of record at the close of business on June 13,
1988 (the "Record Date"). Effective as of April 1, 1998, the Company amended
and restated the Agreement in its entirety to (i) provide for an extension of
the term of the Agreement from May 17, 1998 to April 1, 2008; (ii) amend the
definition of "Acquiring Person" to exclude therefrom certain Persons who may
inadvertently have become Acquiring Persons as a result of various unrelated
events; (iii) reduce certain triggering thresholds set forth in the Agreement
for the determination of an Acquiring Person; (iv) establish a Distribution Date
that is ten (10) Business Days, rather than ten (10) calendar days, subsequent
to a triggering event; (v) provide for the elimination of certain self-dealing
requirements prior to the time at which certain "Flip-In" provisions of the
Agreement may be triggered; (vi) increase the adjusted Purchase Price following
a "Flip-In" event from 25% of the then current market price of the Common Stock
to 50% of the then current market price of the Common Stock; (vii) provide for
an exchange mechanism for each Right under certain instances; (viii) eliminate
the "Continuing Director" concept throughout the Agreement; and (ix) increase
the Purchase Price to $200. Effective as of February 28, 1999, the Company
amended the Agreement to modify the definition of "Acquiring Person" to increase
the permitted holdings of certain Persons who held greater than 10% of the
Company's Common Stock as of February 28, 1999.
Except as set forth below, each Right entitles the registered holder to
purchase from the Company one share of Common Stock, par value $.10 per share
(the "Common Stock"), at a price of $200.00 per share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth in
an Amended and Restated Rights Agreement, dated as of April 1, 1998, as amended
by that First Amendment, dated as of February 28, 1999 (as so amended, the
"Rights Agreement"), between the Company and Norwest Bank Minnesota, N.A., as
Rights Agent.
Pursuant to Rule 12b-15 promulgated under the Securities and Exchange Act
of 1934, the following sets forth the complete text of "Item 1. Description of
the Registrant's Securities to be Registered," of the Company's Form 8-A as
filed with the Securities and Exchange Commission on May 24, 1988, as amended by
the Form 8-A/A filed with the Securities Exchange Commission on April 1, 1998,
as amended by this Form 8-A/A-2.
Initially, the Rights are attached implicitly to all Common Stock
certificates representing shares outstanding, and no separate Right certificates
will be distributed. Until the earlier to occur of ten (10) Business Days
following (i) a public announcement that, without the prior consent of the Board
of Directors, a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of voting securities having 15% or more (or 18% or more if such person
or group was the beneficial owner of voting securities having 10% or more of the
voting power of the Company as of February 28, 1999) of the voting power of the
Company (the "Stock Acquisition Date"), or (ii) the commencement of (or a public
announcement of an intention to make) a tender offer or exchange offer which
would result in any
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person or group and related persons having beneficial ownership of voting
securities having 15% or more (or 18% or more if such person or group was the
beneficial owner of voting securities having 10% or more of the voting power of
the Company as of February 28, 1999) of the voting power of the Company without
the prior consent of the Board of Directors, (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 the Record Date, by such
Common Stock certificate. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with Common
Stock certificates. From as soon as practicable after the Record Date and until
the Distribution Date (or earlier redemption or expiration of the Rights), 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. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Stock outstanding as of the Record Date 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 ("Rights Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the Distribution Date,
and the separate Rights Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on April 1, 2008 unless earlier redeemed by the Company as described
below.
In the event that, at any time following the Distribution Date, any person
becomes the beneficial owner of 15% or more (or 18% or more if such person was
the beneficial owner of voting securities having 10% or more of the voting power
of the Company as of February 28, 1999) of the then outstanding shares of Common
Stock (an "Acquiring Person"), the Purchase Price (except with respect to Rights
held by the Acquiring Person, its Affiliates and Associates and certain
transferees of the Acquiring Person or such Affiliates or Associates) shall
(subject to possible suspensions provided for in the Rights Agreement)
thereafter equal to the result obtained by (1) multiplying the then current
Purchase Price by the then number of shares of Common Stock for which a Right is
then exercisable and (2) dividing that product by 50% of the then current market
price per share of Common Stock as of the Stock Acquisition Date in question
(such right being called the "Flip-In Right"). A majority of the Board of
Directors (as determined in its discretion by the vote of a majority of the
Directors then in office) may elect to distribute cash, other securities or
other property in lieu of Common Stock to the Right holders upon the exercise of
their Rights following any such event. In the event that, at any time following
the Distribution Date, the Company is acquired in a merger or other business
combination transaction where the Company is not the surviving corporation or in
the event that 50% or more of its assets or earning power is sold, proper
provision shall be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current Purchase Price
of the Right, common stock of the acquiring entity which has a value of two
times the Purchase Price of the Right (such right being called the "Flip-Over
Right"). The holder of a Right will continue to have the Flip-Over Right
whether or not such holder exercises the Flip-In Right. Upon the occurrence of
any of the events giving rise to the
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exercisability of the Flip-In Right, any Rights that are or were at any time
owned by an Acquiring Person shall become null and void insofar as they relate
to the Flip-In Right.
For example, at a Purchase Price of $200 per Right, and assuming a current
market price of $24.00 per share, if (i) any person becomes an Acquiring Person
or (ii) the Company is the surviving corporation in a merger with an Acquiring
Person in which the Common Stock is not converted or exchanged, each Right other
than a Right owned by the Acquiring Person, would entitle its holder to purchase
a share of the Company's Common Stock for $12.00.
If, following the Distribution Date, there occurs (i) a business
combination with another entity in which the Company's Common Stock is converted
or exchanged, or (ii) a sale of 50% or more of the Company's assets or earning
power, each Right would entitle its holder to purchase $50 worth of the
acquiring entity's stock for $25.
The Purchase Price payable, and the number of shares of Common 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 Common
Stock, (ii) upon the grant to holders of the Common Stock of certain rights or
warrants to subscribe for Common Stock or convertible securities at less than
the current market price of the Common Stock or (iii) upon the distribution to
holders of the Common Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
the Purchase Price. No fractions of shares will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market price of the Common Stock
on the last trading date prior to the date of exercise.
At any time prior to the earlier to occur of (i) the tenth Business Day
following a Stock Acquisition Date or (ii) the expiration of the Rights, the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"), which redemption shall be effective upon the
action of the Board of Directors. Additionally, the Board of Directors (as
determined in its discretion by the vote of a majority of the Directors then in
office) may thereafter redeem the then outstanding Rights in whole, but not in
part, at the Redemption Price provided that (a) such redemption is incidental to
a merger or other business combination transaction or series of transactions
involving the Company but not involving an Acquiring Person or any person who
was an Acquiring Person, or (b) such redemption follows an event giving rise to,
and the expiration of the exercise period for, the Flip-In Right, and at the
time of such redemption, no Acquiring Person beneficially owns 15% or more (or
18% or more if such Acquiring Person was the beneficial owner of voting
securities having 10% or more of the voting power of the Company as of February
28, 1999) of the voting power of the Company. The Company's right to redeem the
Rights shall be reinstated if an Acquiring Person reduces his beneficial
ownership to less than 5% of the then outstanding shares of Common Stock. The
redemption of Rights described in the two preceding
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sentences shall be effective only as of such time when the Flip-In Right is not
exercisable, and in any event, only after 10 Business Days prior notice. Upon
the effective date of the 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.
Additionally, the Board of Directors (as evidenced by the vote of a
majority of the Directors then in office) may also, at any time from and after a
Stock Acquisition Date, exchange one share of Common Stock for each Right held
by a stockholder other than the Acquiring Person during such time as the
Acquiring Person holds any amount of Common Stock between 15% and 50% (or
between 18% and 50% if such Acquiring Person was the beneficial owner of voting
securities having 10% or more of the voting power of the Company as of February
28, 1999) of the then outstanding shares.
Until a Right is exercised, it will not entitle the holder to any rights as
a shareholder of the Company (other than those as an existing stockholder),
including, without limitation, the right to vote or to receive dividends.
The terms of the Rights may be amended by the Board of Directors of the
Company (i) prior to the Distribution Date in any manner, and (ii) on or after
the Distribution Date to cure any ambiguity, to correct or supplement any
provision of the Rights Agreement which may be defective or inconsistent with
any other provisions, or in any manner not adversely affecting the interests of
the holders of the Rights.
The form of the First Amendment to the Amended and Restated Rights
Agreement between the Company and the Rights Agent is filed as Exhibit 4.1 to
this Form 8-A/A-2. A copy of the Rights Agreement is available free of charge
from the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement.
ITEM 2. EXHIBITS
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Exhibit No. Exhibit.
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4.1 First Amendment to Amended and Restated Rights Agreement,
dated as of February 28, 1999, between the Company and
Norwest Bank Minnesota, N.A., as Rights Agent.
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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 amendment on Form 8-A/A-2 to be
signed on its behalf by the undersigned, thereto duly authorized.
NORSTAN, INC.
By: /s/ Kenneth S. MacKenzie
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Its: Chief Financial Officer
Dated: April 21, 1999
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FIRST AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of February 28, 1999, to the Amended and Restated
Rights Agreement, dated as of April 1, 1998 (the "Rights Agreement"), between
Norstan, Inc., a Minnesota corporation (the "Company"), and Norwest Bank
Minnesota, National Association (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 27 thereof;
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its shareholders to amend the Rights Agreement to
modify the definition of an "Acquiring Person" by increasing the permitted
holdings of certain Persons.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the Rights
Agreement as follows:
1. AMENDMENT TO THE RIGHTS AGREEMENT.
A. Section 1(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such
term is hereinafter defined) and Associates (as such term is hereinafter
defined) of such Person, without the prior approval of a majority of the
Board of Directors shall be the Beneficial Owner (as such term is
hereinafter defined) of voting securities having 15% or more of the then
voting power of the Company or who was such a Beneficial Owner at any time
after the date hereof, whether or not such person continues to be the
Beneficial Owner of voting securities having 15% or more of the then voting
power of the Company. Notwithstanding any provision to the contrary
contained herein, with respect to any Person who or which, together with
all Affiliates and Associates of such Person, as of February 28, 1999, was
the Beneficial Owner of voting securities having 10% or more of the voting
power of the Company, such Person shall not become an Acquiring Person
unless and until such Person, without the prior approval of a majority of
the Board of Directors, thereafter becomes the Beneficial Owner of voting
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securities having 18% or more of the then voting power of the Company or
who was such a Beneficial Owner at any time after the date hereof, whether
or not such person continues to be the Beneficial Owner of voting
securities having 18% or more of the then voting power of the Company.
Notwithstanding the foregoing, (A) the term Acquiring Person shall not
include (i) the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
entity organized, appointed or established by the Company for or pursuant
to the terms of any such plan, or (ii) any Person, who or which together
with all Affiliates of such Person becomes the Beneficial Owner of 15% or
more of the then outstanding shares of Common Stock as a result of the
acquisition of Common Stock directly from the Company (provided, however,
that if, after such acquisition, such Person or any Affiliate of such
Person becomes the Beneficial Owner of any additional shares of Common
Stock in an acquisition not made directly from the Company, then such
Person shall be deemed an Acquiring Person), and (B) no Person shall be
deemed to be an Acquiring Person either (X) as a result of the acquisition
of Common Stock by the Company which, by reducing the number of shares of
Common Stock outstanding, increases the proportionate number of shares
Beneficially Owned by such Person together with all Affiliates of such
Person; except that if (i) such Person would become an Acquiring Person
(but for the operation of this subclause (X)) as a result of the
acquisition of Common Stock by the Company, and (ii) after such share
acquisition by the Company, such Person or any Affiliate of such Person
becomes the Beneficial Owner of any additional shares of Common Stock, then
such Person shall be deemed an Acquiring Person or (Y) if (i) such Person
or any Affiliate of such Person inadvertently becomes the Beneficial Owner
of 15% or more (or 18% or more in the case of any Person who or which,
together with all Affiliates and Associates of such Person, as of February
28, 1999, was the Beneficial Owner of voting securities having 10% or more
of the voting power of the Company) of the outstanding shares of Common
Stock, and (ii) within eight (8) calendar days thereafter such Person
notifies the Board of Directors that such Person did so inadvertently and
(iii) within two (2) days after such notification, such Person is the
Beneficial Owner of less than 15% (or less than 18% in the case of any
Person who or which, together with all Affiliates and Associates of such
Person, as of February 28, 1999, was the Beneficial Owner of voting
securities having 10% or more of the voting power of the Company) of the
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outstanding shares of Common Stock. For purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding at any
particular time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of which any Person
is the Beneficial Owner, shall be made in accordance with the last sentence
of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, as in effect on the date of
this Agreement (the "Exchange Act").
B. Section 3(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
(a) Until the earlier of (i) the close of business on the tenth
Business Day after the Stock Acquisition Date, or (ii) the close of
business on the tenth Business Day after the date of the commencement of,
or first public announcement of the intent of any Person (other than the
Company, any Subsidiary of the Company or any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity organized,
appointed or established by the Company for or pursuant to the terms of any
such plan), to commence (which intention to commence remains in effect for
five Business Days after such announcement), a tender or exchange offer
which would result in such person becoming the Beneficial Owner of 15% or
more (or 18% or more in the case of any Person who or which, together with
all Affiliates and Associates of such Person, as of February 28, 1999, was
the Beneficial Owner of voting securities having 10% or more of the voting
power of the Company) of the then outstanding shares of Common Stock
(including any such date which is after the date of this Agreement and
prior to the issuance of the Rights), (the earlier of such dates being
herein referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this Section 3) by
the certificates for Common Stock registered in the names of the holders of
the Common Stock (which certificates for Common Stock shall be deemed also
to be certificates for Rights) and not by separate certificates, and (y)
the Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying shares
of Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will send by
first-class, postage prepaid mail, to each record holder
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of the Common Stock as of the close of business on the Distribution Date,
at the address of such holder shown on the records of the Company, one or
more rights certificates, in substantially the form of Exhibit A hereto
(the "Rights Certificates"), evidencing one Right for each share of Common
Stock so held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
2. MISCELLANEOUS.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all capitalized terms used herein have the meanings ascribed
to them in the Rights Agreement.
(b) This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute but one and
the same document.
(c) Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first written above.
NORSTAN, INC.
By: /s/ Kenneth S. MacKenzie
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Its: Chief Financial Officer
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NORWEST BANK MINNESOTA, N.A.
By: /s/ Nancy Rosengren
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Its: Vice President
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