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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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THE TURNER CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 13-3209884
(State of incorporation or organization) (I.R.S. Employer Identification No.)
375 HUDSON STREET 10014
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
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:
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COMMON STOCK NEW YORK STOCK EXCHANGE, INC.
PREFERRED STOCK NEW YORK STOCK EXCHANGE, INC.
PURCHASE RIGHTS
If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number
to which this form relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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A. COMMON STOCK
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The summary of the terms of the share capital of the Company,
including its Common Stock, par value $1 per share (the "Common Stock"),
set forth below does not purport to be complete and is qualified by
reference to the Company's Restated Certificate of Incorporation, as
amended (the "Certificate of Incorporation"), and the Bylaws of the Company
(the "Bylaws").
AUTHORIZED SHARE CAPITAL
The Company's authorized share capital consists of 20,000,000
shares of Common Stock and 2,000,000 shares of Preferred Stock (the
"Preferred Stock"), par value $1 per share, issuable in series. The
following series of Preferred Stock are currently authorized: 850,000
shares of Series B ESOP Convertible Preference Stock (the "Series B
Preference Stock"), 9,000 shares of Series C 8.5% Convertible Preference
Stock (the "Series C Preference Stock"), 6,000 shares of Series D 8.5%
Convertible Preference Stock (the "Series D Preference Stock"), 9,000
shares of the Series E 8.5% Convertible Preference Stock (the "Series E
Preference Stock") and 200,000 shares of Series F Participating Preference
Stock (the "Series F Preference Stock"). As of November 30, 1998, there
were issued 8,377,131 shares of Common Stock, including 503,433 shares
which were held in the Company's treasury. As of that date, there were
issued and outstanding 838,731 shares of Series B Preference Stock, 9,000
shares of Series C Preference Stock, 6,000 shares of Series D Preference
Stock, no shares of Series E Preference Stock, and no shares of Series F
Preference Stock. In addition, 5,847,608 shares of Common Stock have been
reserved for issuance with respect to (A) options which have been granted
under the Company's stock option plans or (B) conversion of the Company's
Series B Preference Stock, Series C Preference Stock, Series D Preference
Stock and Series E Preference Stock. The Series E Preference Stock may be
issued only in exchange for the Series C Preference Stock. One Preferred
Stock Purchase Right as described below is attached to each issued share of
Common Stock.
COMMON STOCK
The rights, privileges, restrictions and conditions attaching to
the Common Stock are as follows:
Dividends. The holders of Common Stock are entitled to receive
ratably such dividends as may be declared from time to time by the
Company's Board of Directors (the "Board") out of funds legally available
therefor, subject to the preferential dividend rights and other rights of
any outstanding shares of Preferred Stock.
Voting. Holders of shares of Common Stock are entitled to one
vote for each share held of record on matters to be voted on by the
stockholders of the Company.
Liquidation. Upon voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the Company, the
holders of Common Stock are entitled to receive, after distribution in full
of the preferential amounts to be distributed to the holders of Preferred
Stock, all the remaining assets of the Company of whatever kind available
for distribution to stockholders, ratably in proportion to the number of
shares of Common Stock held by them, respectively.
Certain Charter and By-law Provisions. The Company's Certificate
of Incorporation contains certain provisions that could make more difficult
the acquisition of the Company by means of a merger and certain other major
corporate transactions. Any merger, consolidation or disposition of
substantially all the assets of the Company must be authorized by the
affirmative vote of the holders of at least two-thirds of all outstanding
shares entitled to vote thereon. Unless a majority of disinterested
directors approve, a merger, consolidation or certain other major corporate
transactions involving a person owning more than five percent of the voting
shares of the Company (an "Interested Stockholder") require approval of 80%
of the eligible voting shares, except that if requirements as to form of
consideration, minimum price and procedure set forth in the Certificate of
Incorporation are met, only the regular voting requirements, if any,
applicable to the eligible voting shares need be satisfied. To comply with
the form of consideration requirement, the Interested Stockholder must
offer either cash or the same type of consideration used by the Interested
Stockholder in acquiring the largest number of voting shares previously
acquired. To satisfy the minimum price requirements, the aggregate amount
of cash and the "Fair Market Value" (as defined in the Certificate of
Incorporation) of the consideration other than cash to be received per
share by holders of voting shares must be at least equal to the highest per
share price (including brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by such Interested Stockholder in acquiring any of the
Company's voting shares. Furthermore, the minimum price requirement can be
fulfilled only if the Interested Stockholder has neither received any newly
issued shares of capital stock, nor received generally any disproportionate
benefits from the Company or any of its subsidiaries. The "Fair Market
Value" may exceed the market price of Common Stock at the time of any
proposed transaction.
The Company's By-laws contain provisions that could make more
difficult the acquisition of control of the Company by various means, such
as a tender offer, open market purchases, a proxy contest or otherwise. For
instance, the Company's Board is divided into three classes, as nearly
equal in number as is reasonably possible, serving staggered terms. One
class of directors is elected at each annual meeting to serve a term of
three years. In addition, special meetings of the stockholders may only be
called at the direction of the Board.
The rights, preferences and privileges of holders of Common Stock
are subject to, and may be adversely affected by, the rights of the holders
of shares of the outstanding Preferred Stock or any Preferred Stock that
the Company may issue in the future.
Delaware Anti-Takeover Law. The Company is subject to provisions
of Section 203 of the Delaware General Corporation Law. In general, under
Section 203, a Delaware corporation may not engage in any business
combination with any interested stockholder (a person that owns, directly
or indirectly, 15% or more of the outstanding voting stock of a corporation
or is an affiliate or associate of a corporation and was the owner of 15%
or more of the outstanding voting stock of the corporation at any time
within the prior three years), for a period of three years following the
date such stockholder became an interested stockholder, unless (i) prior to
such date the board of directors of the corporation approved either the
business combination or the transaction which resulted in the stockholder
becoming an interested stockholder, or (ii) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction commenced,
or (iii) on or subsequent to such date, the business combination is
approved by the board of directors and authorized at an annual or special
meeting of stockholders, and not by written consent, by at least 66-2/3% of
the outstanding voting stock which is not owned by the interested
stockholder. The restrictions imposed by Section 203 will not apply to a
corporation if the corporation's original certificate of incorporation
contains a provision expressly electing not to be governed by this section
or the corporation by action of its stockholders adopts an amendment to its
certificate of incorporation or by-laws expressly electing not to be
governed by Section 203. The Company has not elected out of Section 203,
and thus the restrictions imposed by Section 203 apply to the Company.
PREFERRED STOCK
The Board is expressly authorized to issue shares of Preferred
Stock from time to time in one or more series as the Board may determine.
Dividends. The holders of Preferred Stock of any series are
entitled to receive preferential cash dividends as established for the
particular series, before any dividend on the Common Stock, other than
dividends payable in Common Stock, has been paid or set apart for payment
with respect to the same dividend period. All shares of the Preferred Stock
of all series will be of equal rank, preference and priority as to
dividends irrespective of whether or not the rates of dividends are the
same. When the stated dividends are not paid in full, the shares of all
series of the Preferred Stock will share ratably in the payment of
dividends including accumulations, if any, in accordance with the sums
which would be payable to such shares if all dividends are not paid in
full; provided, however, that any two or more series of Preferred Stock may
differ from each other as to the existence and extent of the right to
cumulative dividends.
Voting Rights. Unless and except to the extent otherwise provided
by law and provided in the resolution of the Board creating a series of
Preferred Stock, the shares of Preferred Stock will have no voting power
with respect to any matter whatsoever, including, but not limited to, any
actions to (i) increase the authorized number of shares of the Preferred
Stock or of any series thereof, (ii) create shares of stock of any class
ranking prior to or on a parity with any series of the Preferred Stock with
respect to any preference or voting power, and (iii) authorize a new series
of Preferred Stock having preferences or voting power ranking prior to or
on a parity with any series of the Preferred Stock.
Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the
Company, the holders of the shares of each series of Preferred Stock then
outstanding will be entitled to receive out of the net assets of the
Company the amount per share fixed as the liquidation preference by the
Board before any distribution or payment is made to the holders of Common
Stock. If the net assets of the Company, or proceeds thereof, distributable
among the holders of the shares of all series of the Preferred Stock are
insufficient to pay in full the preferential amount as fixed by the Board,
then such assets, or the proceeds thereof, will be distributed among such
holders ratably in accordance with the respective amounts which would be
payable if all amounts payable thereon were paid in full. Neither the
consolidation or merger of the Company, nor the sale, lease or conveyance
of all or any part of its assets will be deemed a liquidation, dissolution,
distribution of assets or winding up of the Company.
SERIES B PREFERENCE STOCK.
Dividends. The holders of shares of Series B Preference Stock are
entitled to receive, when declared by the Board out of funds legally
available therefor, cash dividends in an amount per share per annum equal
to 10% of the original issuance price per share of Series B Preference
Stock (the "Issue Price"). The Issue Price was $21.29 per share.
So long as any shares of Series B Preference Stock are
outstanding, no dividend will be declared, paid, or set apart for payment
on any other class of stock or series thereof ranking on a parity with the
Series B Preference Stock as to payment of dividends unless like
proportionate dividends for all past and then current dividend payment
periods of the Series B Preference Stock shall be or have been declared,
paid, or set apart for payment on the Series B Preference Stock. Also, the
Company may not make any other distributions on or make any payment on
account of the purchase, redemption or other retirement of any other class
of stock or series of stock ranking junior to the Series B Preference Stock
as to payment of dividends unless full dividends for all past and then
current dividend payment periods of the Series B Preference Stock have been
declared, paid, or set apart for payment on the Series B Preference Stock.
Redemption. The Series B Preference Stock is redeemable, in whole
or in part, at the option of the Company. The redemption price per share
during the twelve-month period which started on July 1, 1998 is 104% of the
Issue Price and thereafter, an amount per share equal to the Issue Price
plus, in each case, all accrued and unpaid dividends thereon to the date of
redemption. The Company, at its option, may make payment of the redemption
price required upon redemption of shares of Series B Preference Stock in
cash or in a combination of shares of Common Stock and cash, any such
shares of Common Stock to be valued for such purposes at their Current
Market Price (as defined).
Conversion. Each share of Series B Preference Stock is
convertible, at the option of the holder thereof, at any time and from time
to time into shares of Common Stock. The present conversion rate is one and
one-half shares of Common Stock for each share of Series B Preference
Stock, subject to antidilution adjustments.
Voting. (i) Except as otherwise required by law, the holders of
Series B Preference Stock are entitled to a number of votes equal to the
number of shares of Common Stock into which the shares of Series B
Preference Stock held could be converted on the record date for determining
the stockholders entitled to vote, voting together as one class with the
holders of Common Stock and the holders of any other capital stock of the
Company at the time entitled to vote on all matters submitted to a vote of
the stockholders of the Company.
(ii) Except as otherwise required by law, holders of Series B
Preference Stock have no special voting rights and their consent will not
be required (except to the extent they are entitled to vote with the
holders of Common Stock for taking any corporate action); provided,
however, that the affirmative vote of at least two-thirds of the
outstanding shares of Series B Preference Stock, voting separately as a
single series, is necessary to adopt any alteration, amendment or repeal of
any provision of the Certificate of Incorporation or the resolution of the
Board of Directors authorizing the Series B Preference Stock, if such
amendment, alteration or repeal would adversely alter or change the powers,
preferences, or special rights of the shares of Series B Preference Stock.
Liquidation. Upon any liquidation, dissolution or winding up of
the Company, the holders of Series B Preference Stock are entitled to
receive, out of assets of the Company which remain after satisfaction in
full of all claims of creditors of the Company and which are available for
payment to stockholders, and subject to the rights of the holders of any
stock of the Company ranking senior to or on a parity with the Series B
Preference Stock in respect of distributions upon liquidation, dissolution
or winding up of the Company, before any amount is paid or distributed
among the holders of Common Stock or any other shares ranking junior to the
Series B Preference Stock in respect of distributions upon liquidation,
dissolution or winding up of the Company, liquidating distributions in an
amount per share equal to the Issue Price plus an amount equal to all
accrued and unpaid dividends and distributions thereon to the date of
distribution. If upon any liquidation, dissolution or winding up of the
Company, the amounts payable with respect to the Series B Preference Stock
and on other stock ranking as to any such distribution on a parity with the
Series B Preference Stock are not paid in full, the holders of the Series B
Preferred Stock and such other stock will share ratably in any distribution
of assets in proportion to the full respective preferential amounts to
which they are entitled.
In the event that the Company consummates any consolidation,
merger, business combination or other similar transaction, pursuant to
which the outstanding shares of Common Stock are by operation of law
exchanged for or changed or converted into other stock or securities or
cash or any other property, or any combination thereof, outstanding shares
of Series B Preference Stock will, without any action on the part of the
Company or any holder thereof, be automatically converted into an amount
per share equal to the aggregate amount of stock, securities, cash or other
property (payable in like kind) receivable upon such event by a holder of
the number of shares of Common Stock into which such shares of Series B
Preference Stock could have been converted immediately prior to such event
unless the holder of Series B Preference Stock elects to receive a cash
payment equal to the amount payable in respect of shares of Series B
Preference Stock upon liquidation of the Company pursuant to the
liquidation rights described above.
SERIES C PREFERENCE STOCK
Dividends. At the date hereof, the holders of shares of Series C
Preference Stock are entitled to receive, when declared by the Board out of
funds legally available therefor, on the day a dividend is paid to the
holders of the Common Stock, a dividend equal to the dividend (other than a
dividend paid solely in shares of Common Stock) paid with regard to the
number of shares of Common Stock into which a share of Series C Preference
Stock could have been converted on the record date for payment of the
dividend.
Unless and until all accumulated dividends on the Series C
Preference Stock have been paid, the Company may not (i) declare, pay or
set aside funds for the payment of any dividend or other distribution
(other than a distribution payable solely in Common Stock) with regard to
shares of Common Stock or other shares ranking junior to the Series C
Preference Stock (in this subsection "Junior Shares") or (ii) redeem or
purchase, or set aside funds for the redemption or purchase of, any Junior
Shares. While any shares of Series C Preference Stock are outstanding, the
Company may not pay, or set aside funds for the payment of, a dividend with
regard to any class or series of stock ranking on a parity with the Series
C Preference Stock as to payment of dividends unless at least a
proportionate payment is made with regard to all accumulated dividends on
the Series C Preference Stock.
Conversion. Each share of Series C Preference Stock is
convertible, at the option of the holder thereof, at any time and from time
to time into a number of fully paid and non-assessable shares of Common
Stock equal to the Liquidation Preference (as defined below in this
subsection) of the shares surrendered for conversion divided by the
Conversion Price (as the same may be adjusted in accordance with the terms
of the Series C Preference Stock). The present conversion rate is 166 2/3
shares of Common Stock for each share of Series C Preference Stock, subject
to antidilution adjustments.
Voting. While the holders of Series C Preference Stock hold in
aggregate shares of Common Stock and certain other securities which are
convertible into or exchangeable for a number of shares of Common Stock
("Common Stock Equivalents") totaling at least 15% of the Outstanding
Common Stock (as defined in the terms of the Series C Preferred Stock), the
holders of the Series C Preference Stock, voting as a separate class, will
have the right to elect three directors of the Company. While the holders
of the Series C Preference Stock hold in aggregate shares of Common Stock
and Common Stock Equivalents totaling less than 15%, but at least 12.5%, of
the Outstanding Common Stock, the holders of the Series C Preference Stock,
voting as a separate class, will have the right to elect two directors of
the Company. Lastly, while the holders of the Series C Preference Stock
hold in aggregate shares of Common Stock and Common Stock Equivalents
totaling less than 12.5%, but at least 10%, of the Outstanding Common
Stock, the holders of the Series C Preference Stock, voting as a separate
class, will have the right to elect one director of the Company. Further,
holders of the Series C Preference Stock vote together with the holders of
the Common Stock, and together with the holders of any other class or
series of stock which vote together with the holders of the Common Stock,
with each holder of record entitled to the same number of votes as the
number of shares of Common Stock into which the Series C Preference Stock
held by such holder could be converted, on all matters, except that when
the holders of the Series C Preference Stock are entitled to elect at least
one director as a class, they do not vote for the election of directors
with the other stockholders.
Redemption. The Series C Preference Stock is not redeemable at
the election of the Company. However, if at any time the Company issues in
any transaction a number of shares of Common Stock, or certain securities
which are convertible into or exchangeable for a number of shares of Common
Stock ("Convertible Securities")(as defined in the terms of the Series C
Preference Stock), which is equal to 15% or more of the outstanding shares
of Common Stock (as determined in accordance with the terms of the Series C
Preference Stock), then promptly thereafter, unless the issuance of those
shares of Common Stock or Convertible Securities in the transaction is
approved by the holders of two-thirds of the outstanding Series C
Preference Stock, each Series C Preference Stock holder will have the right
during a limited period of time, to require the Company to redeem all the
Series C Preference Stock owned of record or beneficially by the holder.
The redemption price per share is equal to the Liquidation Preference of
that share plus cash in the amount of any accumulated but unpaid dividends,
and all accrued dividends, if any, since the last dividend payment date,
with regard to those shares.
Liquidation. Upon any liquidation, dissolution or winding up of
the Company, the holders of Series C Preference Stock are entitled to
receive, out of assets of the Company which remain after satisfaction in
full of all claims of creditors of the Company and which are available for
payment to stockholders, and subject to the rights of the holders of any
stock of the Company ranking senior to or on a parity with the Series C
Preference Stock in respect of distributions upon liquidation, dissolution
or winding up of the Company, before any amount is paid or distributed
among the holders of Common Stock or any other shares ranking junior to the
Series C Preference Stock in respect of distributions upon liquidation,
dissolution or winding up of the Company, liquidating distributions in an
amount per share equal to (i) $1,000 per share (the "Liquidation
Preference") plus (ii) all accumulated and unpaid dividends, and all
accrued but not yet due dividends, with regard to the Series C Preference
Stock to the date of final distribution. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect
to the Series C Preference Stock and on other stock ranking as to any such
distribution on a parity with the Series C Preference Stock are not paid in
full, the holders of the Series C Preferred Stock and such other stock will
share ratably in any distribution of assets in accordance with the
respective liquidation preferences of the shares held by them.
SERIES D PREFERENCE STOCK
Dividends. At the date hereof, the holders of shares of Series D
Preference Stock are entitled to receive, when declared by the Board out of
funds legally available therefor, on the day a dividend is paid to the
holders of the Common Stock, a dividend equal to the dividend (other than a
dividend paid solely in shares of Common Stock) paid with regard to the
number of shares of Common Stock into which a share of Series D Preference
Stock could have been converted on the record date for payment of the
dividend.
Unless and until all accumulated dividends on the Series D
Preference Stock have been paid, the Company may not (i) declare, pay or
set aside funds for the payment of any dividend or other distribution
(other than a distribution payable solely in Common Stock) with regard to
shares of Common Stock or other stock ranking junior to the Series D
Preference Stock (in this subsection "Junior Shares") or (ii) redeem or
purchase, or set aside funds for the redemption or purchase of, any Junior
Shares. While any shares of Series D Preference Stock are outstanding, the
Company may not pay, or set aside funds for the payment of, a dividend with
regard to any class or series of stock ranking on a parity with the Series
D Preference Stock as to payment of dividends unless at least a
proportionate payment is made with regard to all accumulated dividends on
the Series D Preference Stock.
Conversion. Each share of Series D Preference Stock is
convertible, at the option of the holder thereof, at any time and from time
to time into a number of fully paid and non-assessable shares of Common
Stock equal to the Liquidation Preference (as defined below in this
subsection) of the shares surrendered for conversion divided by the
Conversion Price (as the same may be adjusted in accordance with the terms
of the Series D Preference Stock). The present conversion rate is 150
shares of Common Stock for each share of Series D Preference Stock, subject
to antidilution adjustments.
Voting. Except as otherwise required by law, with regard to each
matter presented for the vote of the Common Stock holders, each holder of a
Series D Preference Stock will be entitled to vote together with the
holders of the Common Stock, and together with the holders of any other
class or series of stock which vote together with the holders of the Common
Stock, with each holder of record entitled to the same number of votes as
the number of shares of Common Stock into which the Series D Preference
Stock held by such holder could be converted. The present holder of the
Series C Preference Stock and the Series D Preference Stock has agreed that
at any time when the holders of the Series C Preference Stock, voting as a
separate class, have the right to elect any directors, such holder, in
elections of directors, will vote all shares of Series D Preference Stock
held by such holder in the same proportion in which the shares of Common
Stock not owned by such holder are voted.
Redemption. The Series D Preference Stock is not redeemable at
the election of the Company. However, if at any time the Company issues in
any transaction a number of shares of Common Stock, or certain securities
which are convertible into or exchangeable for a number of shares of Common
Stock ("Convertible Securities") (as defined in the terms of the Series D
Preference Stock), which is equal to 15% or more of the Outstanding Common
Stock (as defined in the terms of the Series D Preference Stock), then
promptly thereafter, unless the issuance of those shares of Common Stock or
Convertible Securities in the transaction is approved by the holders of
two-thirds of the outstanding Series D Preference Stock, each Series D
Preference Stock holder will have the right during a limited period of
time, to require the Company to redeem all the Series D Preference Stock
owned of record or beneficially by the holder. The redemption price per
share is equal to the Liquidation Preference of that share plus cash in the
amount of any accumulated but unpaid dividends, and all accrued dividends,
if any, since the last dividend payment date, with regard to those shares.
Liquidation. Upon any liquidation, dissolution or winding up of
the Company, the holders of Series D Preference Stock are entitled to
receive, out of assets of the Company which remain after satisfaction in
full of all claims of creditors of the Company and which are available for
payment to stockholders, and subject to the rights of the holders of any
stock of the Company ranking senior to or on a parity with the Series D
Preference Stock in respect of distributions upon liquidation, dissolution
or winding up of the Company, before any amount is paid or distributed
among the holders of Common Stock or any other shares ranking junior to the
Series D Preference Stock in respect of distributions upon liquidation,
dissolution or winding up of the Company, liquidating distributions in an
amount per share equal to (i) $1,000 per share (the "Liquidation
Preference") plus (ii) all accumulated and unpaid dividends, and all
accrued but not yet due dividends, with regard to the Series D Preference
Stock to the date of final distribution. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect
to the Series D Preference Stock and on other stock ranking as to any such
distribution on a parity with the Series D Preference Stock are not paid in
full, the holders of the Series D Preferred Stock and such other stock will
share ratably in any distribution of assets in accordance with the
respective liquidation preferences of the shares held by them.
SERIES E PREFERENCE STOCK
The rights and preferences applicable to the Series E Preference
Stock are essentially the same as those applicable to the Series C
Preference Stock discussed above, with the exception that the Series E
Preference Stock does not have the right to a class vote for directors.
B. PREFERRED STOCK PURCHASE RIGHTS ("RIGHTS")
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On August 14, 1998, the Board of the Company declared a dividend
distribution of one Right for each outstanding share of Common Stock. The
distribution was payable to the stockholders of record at the close of
business on September 21, 1998. In addition, the Company has authorized the
issuance of one Right with respect to each share of Common Stock that
becomes outstanding between the close of business on September 21, 1998,
and the earlier of the Distribution Date or Expiration Date (as such terms
are hereinafter described) or the date, if any, on which Rights may be
redeemed. When exercisable, each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of Series F
Preference Stock at a price of $80 per one one-hundredth of a share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as Rights Agent
(the "Rights Agent").
Up to and including the Distribution Date, the Rights will be
evidenced, with respect to any of the Common Stock certificates outstanding
as of the close of business on September 21, 1998, by such Common Stock
certificates, whether or not a copy of the Summary of Rights is attached
thereto, and the Rights will be transferred with and only with Common
Stock. In addition, up to and including the Distribution Date (or earlier
redemption or expiration of the Rights), (i) new Common Stock certificates
issued after the close of business on September 21, 1998, upon transfer or
new issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference and (ii) the surrender for transfer of any
certificates for Common Stock outstanding on or after September 21, 1998,
with or without a copy of the Summary of Rights attached thereto, will also
constitute the transfer of the Rights associated with Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
Under the Rights Agreement, the Distribution Date is defined as
the earlier of the tenth business day after (i) the commencement of a
tender or exchange offer by any person (other than the Company, any
subsidiary of the Company or any employee benefit plan or employee stock
plan of the Company or of any subsidiary of the Company) for a number of
the outstanding shares of the Company's stock having in the aggregate 30%
or more of the general voting power of the Company, unless the Board
declares that the tenth business day following such tender or exchange
offer shall not be considered a Distribution Date, or (ii) the date (the
"Stock Acquisition Date") of a public announcement by the Company or an
Acquiring Person that an Acquiring Person has become such. In general,
under the Rights Agreement an Acquiring Person is a person or group of
affiliated or associated persons (other than the Company, any subsidiary of
the Company, any employee benefit plan or employee stock plan of the
Company or of any subsidiary of the Company, any person who is the
beneficial owner of shares of the Company's stock having in the aggregate
30% or more of the general voting power of the Company solely by reason of
the purchase or conversion of certain specified securities, including the
Series C Preference Stock and Series D Preference Stock, or any person who
acquires shares of the Company's stock having in the aggregate 30% or more
of the general voting power of the Company in connection with a transaction
or series of transactions approved in advance by the Board) who has
acquired or obtained the right to acquire beneficial ownership of a number
of the outstanding shares of the Company's stock having in the aggregate
30% or more of the general voting power of the Company.
The Rights are not exercisable until after the date on which the
Company's right to redeem has expired. The Rights will expire on September
21, 2008, unless earlier redeemed by the Company as described below.
The Series F Preference Stock will be non-redeemable and will
rank equally in respect of dividends and the distribution of assets to all
other classes or series of the Company's Preferred Stock, unless the terms
thereof shall provide otherwise. The Series F Preference Stock which is the
subject of the Rights may not be issued except upon exercise of Rights.
Each share of Series F Preference Stock will have a minimum preferential
quarterly dividend rate of $3 per share but will be entitled to an
aggregate of 100 times the cash and non-cash (payable in kind) dividends
and distributions (other than dividends and distributions payable in Common
Stock) declared on the Company's Common Stock. In the event of liquidation,
the holders of Series F Preference Stock will be entitled to receive a
liquidation payment in an amount equal to the greater of $100 per share or
100 times the payment made per share of Common Stock, plus an amount equal
to accrued and unpaid dividends and distributions thereon. Each share of
Series F Preference Stock will have 100 votes, voting together with the
Common Stock. In the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged, each share of
Series F Preference Stock will be entitled to receive 100 times the amount
received per share of Common Stock. The rights of the Series F Preference
Stock as to dividends, liquidation and voting are protected by antidilution
provisions.
The Purchase Price payable, and number of shares of Series F
Preference 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 Common Stock, or a subdivision,
combination or reclassification of Common Stock or Series F Preference
Stock, (ii) upon the grant to holders of Common Stock of certain rights or
warrants to subscribe for Common Stock or convertible securities at less
than the current market price of Common Stock, or (iii) upon the
distribution to holders of Common Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends out of earnings or
retained earnings at a rate not in excess of 125% of the rate of the last
cash dividend theretofore paid or dividends payable in Common Stock) or of
subscription rights or warrants (other than those referred to above).
In the event that, on or at any time after a Stock Acquisition
Date, the Company is acquired in a merger or other business combination
transaction (in which any shares of the Company's Common stock are changed
into or exchanged for other securities or assets) or 50% or more of the
assets or earning power of the Company and its subsidiaries (taken as a
whole) are sold, proper provision shall be made so that each holder of a
Right shall thereafter have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such transaction
would have a market value (determined as provided in the Rights Agreement)
of two times the exercise price of the Right.
In the event that (i) on or at any time after a Stock Acquisition
Date, the Company is the surviving corporation in a merger or other
business combination and its Common Stock remains outstanding and
unchanged, (ii) an Acquiring Person engages in one or more self-dealing
transactions specified in the Rights Agreement, (iii) a person (other than
the Company, any subsidiary of the Company, any employee benefit plan or
employee stock plan of the Company or of any subsidiary of the Company, or
a person who acquires 30% or more of the general voting power of the
Company in connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of Directors of the
Company) alone, or together with his, her or its affiliates or associates,
becomes the beneficial owner of a number of the outstanding shares of the
Company's stock having in the aggregate 30% or more of the general voting
power of the Company or (iv) during such time as there is an Acquiring
Person, any of certain events described in the Rights Agreement occurs
which results in such Acquiring Person's ownership interest being increased
by more than 1%, then, and in each such case, proper provision shall be
made so that each holder of a Right (except as noted below) will thereafter
have the right to receive, upon payment of the Purchase Price, that number
of shares of Common Stock, or in the discretion of the Board of Directors
of the Company, one one-hundredths of a share of Series F Preference Stock
as shall equal the result obtained by (A) multiplying the then current
Purchase Price by the then number of one one-hundredths of a share of
Series F Preference Stock for which a Right was exercisable immediately
prior to the first occurrence of any one of the events listed above in this
paragraph and (B) dividing that product by 50% of the current market price
per one share of Common Stock.
The holder of any Rights that are, or were, beneficially owned by
an Acquiring Person or an affiliate or associate thereof or certain
transferees thereof which engaged in, or realized the benefit of, an event
or transaction or transactions described in the immediately preceding
paragraph, shall not be entitled to the benefit of the adjustment described
in the immediately preceding paragraph.
Rights are not exercisable until such time as the Rights are no
longer redeemable by the Company as described below.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares (other than fractions which
are integral multiples of the fraction of a share for which a Right is then
exercisable) will be issued and in lieu thereof an adjustment in cash will
be made based on the market price of Common Stock on the last trading date
prior to the date of exercise.
Up to and including the tenth business day after a Stock
Acquisition Date, which time period may be extended by the Board to any
time up to and including the twentieth business day after a Stock
Acquisition Date, the Company may redeem the rights in whole, but not in
part, at a price of $.01 per Right, which amount may be adjusted as
provided in the Rights Agreement (the "Redemption Price"). Promptly upon
the action of the Board electing to redeem the Rights, the Company shall
make an announcement thereof and, upon such announcement, the right to
exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Any of the provisions of the Rights Agreement may be amended by
the Board prior to the Distribution Date. On and after the Distribution
Date, the provisions of the Rights Agreement may be amended by the Board in
order to cure any ambiguity, correct or supplement any provision contained
in the Rights Agreement which may be defective or inconsistent with any
other provisions in the Rights Agreement, to make changes which do not
adversely affect the interests of holders of Rights (other than an
Acquiring Person or an Affiliate or Associate thereof), or to shorten or
lengthen any time period under the Rights Agreement; provided, however,
that the Rights Agreement may not be supplemented or amended to lengthen a
time period relating to when the rights may be redeemed at such time as the
Rights are not redeemable, or any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the rights of,
and/or benefits to, the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company with respect to a Right
held, including, without limitation, the right to vote or to receive
dividends.
The present distribution of the Rights is not taxable to the
Company or its shareholders. The Rights are not dilutive and will not
affect reported earnings per share. The Company will receive no proceeds
from the issuance of the Rights as a dividend.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by the Board. The Rights should not
interfere with any merger or other business combination approved by the
Board since the Rights may be redeemed by the Company at $.01 per Right,
subject to adjustment, at any time up to and including the tenth business
day (twentieth business day if the Board of Directors so determines)
following the Stock Acquisition Date.
The foregoing description of the Rights does not purport to be
complete and is qualified by reference to the Rights Agreement, dated as of
September 21, 1998 between the Company and First Chicago Trust Company of
New York, as Rights Agent, specifying the terms of the Rights, which
includes as Exhibit A the form of Right Certificate, as Exhibit B the form
of Summary of Rights to Purchase Preference Stock and as Exhibit C the form
of Certificate of Designation, Preferences and Rights of the Series F
Participating Preference Stock specifying the terms of the Series F
Preference Stock.
<PAGE>
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.
Dated: December 11, 1998
THE TURNER CORPORATION
By: /s/ Sara J. Gozo
--------------------------------
Sara J. Gozo
Vice President, Secretary and
General Counsel
