SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 02549
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FORM 8-A/A
AMENDMENT NO. 1
AMENDING THE REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BAILEY CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 13-3229215
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(State of incorporation or organization) (IRS Employer
Identification No.)
700 Lafayette Road, P.O. Box 307, Seabrook, NH 03874
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(Address of principal executive offices) (Zip Code)
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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None.
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Common Stock
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(Title of Class)
Item 1. Description of Securities to be Registered.
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On June 5, 1996, the Board of Directors of Bailey Corporation
(the "Company") approved an Amendment (the "Amendment to Rights Agreement") to
its Rights Agreement dated as of September 28, 1995 (the "Rights Agreement"),
between the Company and State Street Bank and Trust Company, as Rights Agent
(the "Rights Agent"). The Amendment to Rights Agreement modifies the definition
of Acquiring Person, which is defined in the Rights Agreement to mean any person
or group acquiring or obtaining the right to acquire beneficial ownership of
outstanding Capital Shares (as defined below) in excess of or equivalent to such
person's or group's Ownership Threshold (as defined below), so as to provide
that none of Venture Holdings Trust, a Grantor Trust, Vemco Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of Venture Holdings Trust, and
their Affiliates shall be deemed to be an Acquiring Person by virtue of (x)
execution of the Agreement and Plan of Merger, dated as of June 5, 1996 (the
"Merger Agreement," which term shall include any amendments thereto) by and
between the Company and Vemco Acquisition Corp., (y) execution of the Tender and
Option Agreement, dated as of June 5, 1996, by and between certain Stockholders
of the Company and Vemco Acquisition Corp. (the "Tender and Option Agreement")
or (z) the consummation of any of the transactions contemplated thereby,
including, without limitation, the publication or other announcement of the
Offer (as defined in the Merger Agreement), the consummation of the Offer and
Merger (as defined in the Merger Agreement) or the purchase of shares of Common
Stock by Vemco Acquisition Corp., regardless of whether any such action results
in Venture Holdings Trust, Vemco Acquisition Corp. or any of their Affiliates
becoming the beneficial owner of shares equaling or exceeding the Ownership
Threshold. Consequently, none of such acts shall constitute an event giving rise
to a Distribution Date (as defined below), an event giving rise to any
entitlement to exercise any Rights, or an event giving rise to any adjustment as
described in Section 11 or Section 12 of the Rights Agreement. Finally,
notwithstanding any other provision of the Rights Agreement, upon consummation
of the Merger, pursuant to and in accordance with the terms of the Merger
Agreement, all Rights shall expire.
On September 28, 1995, the Board of Directors of Bailey
Corporation (the "Company") distributed one Right for each outstanding share of
the Company's Common Stock, par value $.10 per share (the "Common Stock"). The
Rights were issued to the holders of record of Common Stock outstanding on
September 28, 1995, and with respect to Common Stock issued thereafter until the
Distribution Date (as defined below) and, in certain circumstances, with respect
to Common Stock issued after the Distribution Date. Each Right, when it becomes
exercisable as described below, will entitle the registered holder to purchase
from the Company one share of Common Stock at a price of $28 (the
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"Purchase Price"). The description and terms of the Rights are set forth in the
Rights Agreement.
Until the earlier of (i) such time as the Company learns that
a person or group has become an Acquiring Person or (ii) the close of business
on such date, if any, as may be designated by the Board of Directors of the
Company following the commencement of, or first public disclosure of an intent
to commence, a tender or exchange offer for outstanding Capital Shares which
could result in such offeror(s) becoming an Acquiring Person (the earlier of
such dates being called the "Distribution Date"), the Rights will be evidenced
by the certificates for Capital Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be Right Certificates, as
defined below) and not by separate Right Certificates. Therefore, until the
Distribution Date, the Rights will be transferred with and only with the Capital
Shares.
"Capital Shares," when used with reference to the Company
prior to a business combination, shall mean the shares of Common Stock or any
other shares of capital stock of the Company into which the Common Stock shall
be reclassified or changed.
"Ownership Threshold" means, with respect to any person, the
beneficial ownership of the greater of (i) 15% of the Capital Shares at any time
outstanding or (ii) the percentage of the aggregate of the outstanding Capital
Shares beneficially owned by such person on the date the Rights Plan is
implemented, plus in the case of this clause (ii) 1% of the Capital Shares
outstanding on such date. A person will not be deemed to beneficially own any
Capital Shares solely by virtue of the receipt by such person of a revocable
proxy or consent given to such person pursuant to a definitive proxy statement
filed with the Securities and Exchange Commission and otherwise in accordance
with the rules and regulations under the Securities Exchange Act of 1934.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Capital Shares as of the close of business on
the Distribution Date (and to each initial record holder of certain Common Stock
originally issued after the Distribution Date), and such separate Right
Certificates alone will thereafter evidence the Rights.
The Rights are not exercisable until the Distribution Date and
will expire upon the earlier of (i) the consummation of the Merger pursuant to,
and in accordance with, the terms of the Merger Agreement, (ii) September 28,
2005 (the "Expiration Date"), and (iii) such time as the Rights are redeemed by
the Company as described below.
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The number of shares of Common Stock or other securities
issuable upon exercise of a Right, the Purchase Price, the Redemption Price (as
defined below) and the number of Rights associated with each outstanding Capital
Share are all subject to adjustment by the Board of Directors of the Company in
the event of any change in the Capital Shares, whether by reason of stock
dividends, stock splits, recapitalizations, mergers, consolidations,
combinations or exchanges of securities, split-ups, split-offs, spin-offs,
liquidations, other similar changes in capitalization, any distribution or
issuance of cash, assets, evidences of indebtedness or subscription rights,
options or warrants to holders of Capital Shares, as the case may be (other than
distribution of the Rights or regular quarterly cash dividends) or otherwise,
except that none of the Merger Agreement, the Tender and Option Agreement or the
consummation of any of the transactions contemplated thereby, shall give rise to
any such adjustment.
At such time as there is an Acquiring Person, the Rights will
entitle each holder (other than such Acquiring Person or any affiliate or
associate of such Acquiring Person) of a Right to purchase, for the Purchase
Price, that number of shares of Common Stock which at the time of such event
would have a market value of twice the Purchase Price.
In the event the Company is acquired in a merger or other
business combination by an Acquiring Person or an associate or affiliate of an
Acquiring Person that is a publicly traded corporation, or 50% or more of the
Company's assets or assets representing 50% or more of the Company's revenues or
cash flow are sold, leased, exchanged or otherwise transferred (in one or more
transactions) to an Acquiring Person or an associate or affiliate of an
Acquiring Person that is a publicly traded corporation, each Right will entitle
its holder (subject to the next paragraph) to purchase, for the Purchase Price,
that number of common shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase Price. In the event
the Company is acquired in a merger or other business combination by an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity, or 50% or more of the Company's assets or assets
representing 50% or more of the Company's revenues or cash flow are sold,
leased, exchanged or otherwise transferred (in one or more transactions) to an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity, each Right will entitle its holder (subject to the
next paragraph) to purchase, for the Purchase Price, at such holder's option,
(i) that number of shares of the surviving corporation in the transaction with
such entity (which surviving corporation could be the Company) which at the time
of the transaction would have a book value of twice the Purchase Price, (ii)
that number of shares of such entity which at the time of the transaction
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would have a book value of twice the Purchase Price or (iii) if such entity has
an affiliate which has publicly traded common shares, that number of common
shares of such affiliate which at the time of the transaction would have a
market value of twice the Purchase Price.
Any Rights that are at any time beneficially owned by an
Acquiring Person (or any affiliate or associate of an Acquiring Person) will be
null and void and nontransferable and any holder of any such Right (including
any purported transferee or subsequent holder) will be unable to exercise or
transfer any such Right.
At any time after a person or a group becomes an Acquiring
Person, the Board of Directors of the Company may exchange all or part of the
then outstanding Rights (other than Rights that have become null and void and
nontransferable as described above) for consideration per Right consisting of
one-half of the securities that otherwise would have been issuable to the holder
of each Right upon exercise thereof. The Board of Directors of the Company may
also, in substitution for shares of Common Stock, (i) pay cash, (ii) issue other
equity securities or (iii) issue debt securities (or a combination thereof)
having an aggregate market value equal to the value of the shares of Common
Stock which otherwise would have been issuable, if, at such time, the Company
does not have a sufficient number of shares of Common Stock issued but not
outstanding or authorized but unissued.
At any time prior to the earlier of (i) such time as a person
becomes an Acquiring Person and (ii) the Expiration Date, the Board of Directors
of the Company may redeem the Rights in whole, but not in part, at a price (in
cash or Common Stock or other securities of the Company deemed by the Board of
Directors to be at least equivalent in value) of $.01 per Right, subject to
adjustment as provided in the Rights Agreement (the "Redemption Price").
Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
After there is an Acquiring Person, the Board of Directors may
elect to exchange each Right (other than Rights that shall have become null and
void and nontransferable as described above) for consideration per Right
consisting of one-half of the securities that would be issuable at such time
upon the exercise of one Right pursuant to the terms of the Rights Agreement.
Until a Right is exercised, the holder thereof, as
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such, will have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
At any time prior to the Distribution Date, the Company may,
without the approval of any holder of the Rights, supplement or amend any
provision of the Rights Agreement (including the date on which the Distribution
Date shall occur or the time during which the Rights may be redeemed), except
that no supplement or amendment shall be made which reduces the Redemption Price
(other than pursuant to certain adjustments therein) or provides for an earlier
Expiration Date. Notwithstanding the foregoing, upon consummation of the Merger,
pursuant to and in accordance with the terms of the Merger Agreement, all Rights
shall expire.
The Rights have certain antitakeover effects. The Rights will
cause substantial dilution when a person or group attempts to acquire the
Company without conditioning the offer on substantially all the Rights being
acquired. The Rights will not interfere with any merger or other business
combination pursuant to certain all-cash tender offers for all outstanding
Capital Shares or with a third party approved by the Board of Directors of the
Company since the Board of Directors of the Company may, at its option, at any
time prior to any person becoming an Acquiring Person, redeem all but not less
than all of the then outstanding Rights at the Redemption Price.
The Rights Agreement specifying the terms of the Rights and
the form of Right Certificate (Exhibit A to the Rights Agreement) were filed as
exhibits to the Company's Registration Statement on Form 8-A dated October 2,
1995. The Amendment to Rights Agreement is filed as an exhibit hereto. The
foregoing description of the Rights does not purport to be complete and is
qualified in its entirety by reference to such exhibits, which are incorporated
herein by reference.
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Item 2. Exhibits.
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1. Rights Agreement dated as of September 28, 1995, between
Bailey Corporation and State Street Bank and Trust Company, as
Rights Agent.*
2. Form of Right Certificate (Exhibit A to the Rights
Agreement).*
3. Amendment to Rights Agreement, effective June 5, 1996,
amending the Rights Agreement dated as of September 28, 1995,
between Bailey Corporation and State Street Bank and Trust
Company, as Rights Agent.
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* Incorporated by reference to the Company's Registration Statement on Form
8-A dated October 2, 1995.
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.
BAILEY CORPORATION
Dated: June 20, 1996 By: /s/ Roger R. Phillips
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Roger R. Phillips
President and
Chief Executive Officer
Exhibit 3
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AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, effective as of June 5, 1996, to the Rights Agreement, dated
as of September 28, 1995, between Bailey Corporation, a Delaware corporation
(the "Company"), and State Street Bank and Trust Company, a Massachusetts trust
company, as Rights Agent (the "Rights Agent') (the "Rights Agreement").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement specifying the terms of the Rights (as defined therein); and
WHEREAS, the Company and the Rights Agent desire to amend the Right
Agreement in accordance with Section 26 of the Rights Agreement;
THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereby agree as
follows:
1. The definition of "Acquiring Person" in Section 1 is amended
by adding at the end of said definition:
None of Venture Holdings Trust, a Grantor Trust
("Parent"), Vemco Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of Parent ("Purchaser") and their
Affiliates shall be deemed to be an Acquiring Person by virtue
of (x) execution of the Agreement and Plan of Merger, dated as
of June 5, 1996 (the "Merger Agreement," which term shall
include any amendments thereto) by and between the Company and
Purchaser, (y) execution of the Tender and Option Agreement,
dated as of June 5, 1996, by and between certain Stockholders
of the Company and Purchaser (the "Tender and Option
Agreement') or (z) the consummation of any of the transactions
contemplated thereby, including, without limitation, the
publication or other announcement of the Offer (as defined
therein), the consummation of the Offer and Merger (as defined
therein) or the purchase of shares of Common Stock by the
Purchaser.
2. The first sentence of Section 3(b) is amended by adding the
following at the end of said sentence:
; provided, however, that neither the execution nor the public
announcement of (x) the Offer, (y) the Merger or (z) any
transaction that results in the Parent, Purchaser or any of
their Affiliates becoming the Beneficial Owner of shares
equaling or exceeding the Ownership Threshold, shall
constitute an event giving rise to a Distribution Date.
3. Section 7(a) is amended by adding the following at the end of
said Section:
Notwithstanding anything to the contrary contained in
this Rights Agreement, none of the Offer and Tender and Option
Agreement or the Merger shall constitute an event giving rise
to any entitlement to exercise any Rights, or an event giving
rise to any adjustment as described in Section 11 or Section
12 of this Rights Agreement.
4. Section 14(b) is amended by adding the following at the end of
said Section:
; provided, however, that the provisions of this Section 14(b)
are not applicable to limit, in any manner, consummation of
the Offer, the Tender and Option Agreement or the Merger
pursuant to, and in accordance with, the terms of the Merger
Agreement.
5. Section 24 is amended by adding the following subsection (c)
at the end of said Section:
(c) Notwithstanding any other provision of this
Rights Agreement, upon consummation of the Merger, pursuant
to, and in accordance with, the terms of the Merger Agreement,
all Rights shall expire.
6. The term "Rights Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby.
7. The foregoing amendment shall be effective as of the date
first above written, and, except as set forth herein, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
8. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
dully executed as of the date first above written.
BAILEY CORPORATION
By: /s/ Roger R. Phillips
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Name: Roger R. Phillips
Title: Chairman
STATE STREET BANK & TRUST CO.,
as Rights Agent
By: /s/ Vincent J. Quealy, Jr.
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Name: Vincent J. Quealy, Jr.
Title: Managing Director
