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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Ben & Jerry's Homemade, Inc.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Vermont 03-0267543
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(STATE OR OTHER JURISDICTION OF INCORPORATION) (IRS EMPLOYER
IDENTIFICATION NO.)
30 Community Drive, South Burlington, Vermont 05403-6828
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (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:
NAME OF EACH EXCHANGE ON WHICH EACH
TITLE OF EACH CLASS TO BE SO REGISTERED CLASS IS TO BE REGISTERED
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Class A Common Stock Purchase Rights Nasdaq National Market
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
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(TITLE OF CLASS)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On July 30, 1998, the Board of Directors (the "Board") of Ben & Jerry's
Homemade, Inc. (the "Company") declared (subject to certain conditions which
were satisfied on or prior to August 13, 1998) a dividend of one purchase right
(a "Right") for every outstanding share of the Company's Class A Common Stock,
$.033 par value (the "Class A Common Stock"). The Rights were distributed on
August 14, 1998 to Class A stockholders of record as of the close of business on
that date (the "Dividend Record Date"). The terms of the Rights are set forth in
a Class A Rights Agreement, dated as of July 30, 1998, between the Company and
American Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent"),
as amended on April 11, 2000 (as amended, the "Class A Rights Agreement"). The
Class A Rights Agreement provides for the issuance of one Right for every share
of Class A Common Stock issued and outstanding on the Dividend Record Date and
for each share of Class A Common Stock which was or is issued after that date
and prior to the "Distribution Date" (as defined below).
Each Right entitles the holder to purchase from the Company one share
of Class A Common Stock at a price of $80.00 per share, subject to adjustment.
The Rights will expire on July 30, 2008 (the "Expiration Date"), or the earlier
redemption of the Rights, and are not exercisable until the Distribution Date.
No separate Rights certificates have been issued. Until the
Distribution Date (or earlier redemption or expiration of the Rights), (i) the
Rights will be evidenced by the Class A Common Stock certificates and will be
transferred with and only with such Class A Common Stock certificates, (ii) new
Class A Common Stock certificates issued after the Dividend Record Date upon
transfer or new issuance of the Company's Class A Common Stock contained and
will contain a notation incorporating the Class A Rights Agreement by reference,
and (iii) the surrender for transfer of any of the Company's Class A Common
Stock certificates constitutes the transfer of the Rights associated with the
Class A Common Stock represented by such certificate.
The Rights will separate from the Class A Common Stock and Rights
certificates will be issued on the Distribution Date. Unless otherwise
determined by a majority of the Board then in office, the Distribution Date will
occur on the earlier of (i) the tenth business day following the later of the
date of a public announcement that a person, including affiliates or associates
of such person, except as described below, (an "Acquiring Person") has acquired
or obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Class A Common Stock and Class B Common Stock (taken
together as a single class (collectively the "Common Stock")) or the date on
which an executive officer of the Company has actual knowledge that an Acquiring
Person became such (the "Stock Acquisition Date"), or (ii) the tenth business
day following commencement of a tender offer or exchange offer that would result
in any person together with its affiliates and associates owning 15% or more of
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the Company's outstanding Common Stock. In any event, the Board of Directors may
delay the distribution of the certificates. After the Distribution Date,
separate certificates evidencing the Rights ("Class A Rights Certificates") will
be mailed to holders of record of the Company's Class A Common Stock as of the
close of business on the Distribution Date and such separate Class A Rights
Certificates alone will evidence the Rights.
Pursuant to Amendment No. 1 to the Class A Rights Agreement, dated as
of April 11, 2000 (the "First Amendment"), none of Ben Cohen, Jerry Greenfield
or Jeffrey Furman will be considered an Acquiring Person under the Class A
Rights Agreement until such person beneficially owns in excess of (i) 15% of the
shares of Common Stock, plus (ii) Class B Common Stock held by such person prior
to June 30, 1998. If any or all of Ben Cohen, Jerry Greenfield or Jeffrey Furman
act together as a group, they shall not be considered an Acquiring Person under
the Class A Rights Agreement until such group beneficially owns in excess of (i)
15% of the shares of Common Stock, plus (ii) Class B Common Stock held by the
members of such group prior to June 30, 1998.
The First Amendment also provides that Conopco, Inc. and its Affiliates
(together, "Conopco") will not be considered an Acquiring Person under the Class
A Rights Agreement solely to the extent that Conopco becomes the beneficial
owner of 15% or more of the shares of Common Stock by reason of the execution
of, or the consummation of the transactions contemplated by, the Agreement and
Plan of Merger, dated as of April 11, 2000 (the "Merger Agreement"), by and
among Conopco, Inc., Vermont All Natural Expansion Company and the Company,
which provision will not survive if the Merger Agreement is terminated in
accordance with its terms. Each of the foregoing groups are referred to herein
as an "Exempt Person". In addition to the foregoing, pursuant to the terms of
the Class A Rights Agreement, the Company, any subsidiary of the Company, any
employee benefit plan of the Company or any subsidiary of the Company, and in
certain cases, an inadvertent triggerer of the Class A Rights Agreement who
makes certain certifications to the Company, will not be considered an Acquiring
Person.
If, at any time, any person or group of affiliated or associated
persons shall become an Acquiring Person, each holder of a Right will have the
right to receive shares of the Company's Class A Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a
market value of two times the exercise price of the Right. Also, in the event
that after the Stock Acquisition Date the Company were acquired in a merger or
other business combination, or more than 25% of its assets or earning power were
sold, each holder of a Right would have the right to exercise such Right and
thereby receive common stock of the acquiring company with a market value of two
times the exercise price of the Right. Following the occurrence of any of the
events described in this paragraph, any Rights that are, or (under certain
circumstances specified in the Class A Rights Agreement) were, beneficially
owned by any Acquiring Person (or any affiliates, associates or transferees of
any Acquiring Person) shall immediately become null and void.
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The Board may, at its option, at any time after any person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Rights for shares of Class A Common Stock at an exchange ratio of one share of
Class A Common Stock per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after July 30, 1998 (such
exchange ratio being hereinafter referred to as the "Exchange Ratio"). The
Board, however, may not effect an exchange at any time after any person (other
than (i) the Company, (ii) any subsidiary of the Company, (iii) any employee
benefit plan of the Company or any subsidiary of the Company, (iv) any entity
holding Common Stock for or pursuant to the terms of any such plan, or (v) an
Exempt Person) , together with all affiliates of such person, becomes the
beneficial owner of 50% or more of the Common Stock then outstanding.
Immediately upon the action of the Board ordering the exchange of any Rights and
without any further action and without any notice, the right to exercise such
Rights will terminate and the only right thereafter of a holder of such Rights
will be to receive that number of shares of Class A Common Stock equal to the
number of such Rights held by the holder multiplied by the Exchange Ratio.
The exercise price of the Rights and the number of shares of Class A
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 Class A Common Stock, (ii) upon the grant to holders of
the Class A Common Stock of certain rights or warrants to subscribe for shares
of the Class A Common Stock or convertible securities at less than the current
market price of the Class A Common Stock, or (iii) upon the distribution to
holders of the Class A Common Stock of evidences of indebtedness or assets
(excluding cash dividends paid out of the earnings or retained earnings of the
Company and certain other distributions) or of subscription rights or warrants
(other than those referred to above).
At any time prior to the earlier of the Distribution Date or the Close
of Business on the Expiration Date, the Company, by a majority vote of the Board
then in office, may redeem the Rights at a redemption price of $.01 per Right
(the "Redemption Price"), as described in the Class A Rights Agreement.
Immediately upon the action of the Board electing to redeem 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.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The Class A Rights Agreement may be amended by the Board at any time
prior to the Distribution Date without the approval of the holders of the
Rights. From and after the Distribution Date, the Class A Rights Agreement may
be amended by the Board without the approval of the holders of the Rights in
order to cure any ambiguity, to correct any defective or inconsistent
provisions, to change any time period for redemption or any other time period
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under the Class A Rights Agreement, or to make any other changes that do not
adversely affect the interests of the holders of the Rights (other than any
Acquiring Person or its affiliates and associates, or their transferees).
The form of Class A Rights Agreement, dated as of July 30, 1998,
between the Company and American Stock Transfer & Trust Company, as Rights
Agent, specifying the terms of the Rights (including as exhibits the form of the
Class A Rights Certificate and the Summary of Class A Rights) and the First
Amendment are attached hereto as exhibits. The foregoing description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to the Class A Rights Agreement, which is incorporated herein by
reference.
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ITEM 2. EXHIBITS.
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1. Class A Rights Agreement, dated as of July 30, 1998 ("Class A
Rights Agreement"), between the Company and American Stock
Transfer & Trust Company, as Rights Agent.*
2. Form of Class A Rights Certificate (attached as Exhibit A to
the Class A Rights Agreement). Pursuant to the Class A Rights
Agreement, printed Class A Rights Certificates will not be
mailed until the Distribution Date (as defined in the Class A
Rights Agreement).*
3. Summary of Class A Rights (attached as Exhibit B to the Class
A Rights Agreement).*
4. Amendment No. 1 to the Class A Rights Agreement, dated as of
April 11, 2000, between the Company and American Stock
Transfer & Trust Company, as Rights Agent.**
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* Filed with the original 8-A.
** Filed herewith.
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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.
BEN & JERRY'S HOMEMADE, INC.
Date: April 13, 2000 By: /s/ Frances G. Rathke
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Name: Frances G. Rathke
Title: Chief Financial Officer
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EXHIBIT INDEX
The following designated exhibits are filed herewith:
1. Rights Agreement, dated as of July 30, 1998 ("Class A Rights
Agreement"), between the Company and American Stock Transfer &
Trust Company, as Rights Agent.*
2. Form of Class A Rights Certificate (attached as Exhibit A to
the Class A Rights Agreement). Pursuant to the Class A Rights
Agreement, printed Class A Rights Certificates will not be
mailed until the Distribution Date (as defined in the Class A
Rights Agreement).*
3. Summary of Class A Rights (attached as Exhibit B to the Class
A Rights Agreement).*
4. Amendment No. 1 to the Class A Rights Agreement, dated as of
April 11, 2000, between the Company and American Stock
Transfer & Trust Company, as Rights Agent.**
* Filed with the original 8-A.
** Filed herewith.
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Exhibit 99.1
AMENDMENT NO. 1 TO THE
CLASS A RIGHTS AGREEMENT
OF BEN & JERRY'S HOMEMADE, INC.
This Amendment No. 1, dated as of April 11, 2000, amends the Class A
Rights Agreement dated as of July 30, 1998 (the "Class A Rights Agreement"),
between Ben & Jerry's Homemade, Inc., a Vermont corporation (the "Company"), and
American Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent").
Terms defined in the Class A Rights Agreement and not otherwise defined herein
are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on July 30, 1998, the Board of Directors of the Company
authorized the issuance of Rights to purchase, on the terms and subject to the
provisions of the Class A Rights Agreement, shares of the Company's Class A
Common Stock;
WHEREAS, on July 30, 1998, the Board of Directors of the Company
authorized and declared a dividend distribution of one Class A Right for every
share of Class A Common Stock of the Company outstanding on the Dividend Record
Date and authorized the issuance of one Class A Right (subject to certain
adjustments) for each share of Class A Common Stock of the Company issued
between the Dividend Record Date and the Distribution Date;
WHEREAS, the Distribution Date has not occurred; and
WHEREAS, pursuant to Section 27 of the Class A Rights Agreement, the
Board has approved an amendment of certain provisions of the Class A Rights
Agreement as set forth below;
NOW, THEREFORE, the Class A Rights Agreement is hereby amended as
follows:
1. Section 1(a) is amended by deleting the phrase "or (v)" after clause
(iv) and adding the following language:
", (v) an Exempt Person, or (vi)"
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2. A new definition is added after Section 1(aa) and before Section
1(bb) as follows:
"(aa') "Exempt Person" shall mean:
(I) Ben Cohen, so long as his Beneficial Ownership of Common
Stock does not exceed (x) 15% of the shares of Common Stock
then outstanding PLUS (y) all or any part of the number of
shares of Class B Common Stock held by Ben Cohen before July
30, 1998, as adjusted for any stock splits, stock dividends or
similar corporate transaction;
(II) Jerry Greenfield so long as his Beneficial Ownership of
Common Stock does not exceed (x) 15% of the shares of Common
Stock then outstanding PLUS (y) all or any part of the number
of shares of Class B Common Stock held by Jerry Greenfield
before July 30, 1998, as adjusted for any stock splits, stock
dividends or similar corporate transaction;
(III) Jeffrey Furman so long as his Beneficial Ownership of
Common Stock does not exceed (x) 15% of the shares of Common
Stock then outstanding PLUS (y) all or any part of the number
of shares of Class B Common Stock held by Jeffrey Furman
before July 30, 1998, as adjusted for any stock splits, stock
dividends or similar corporate transaction;
(IV) Ben Cohen, Jerry Greenfield and Jeffrey Furman acting
together, or any two of them acting together, so long as their
combined Beneficial Ownership of Common Stock does not exceed:
(w) if all three such persons act together (A) 15% of
the shares of Common Stock then outstanding PLUS (B)
all or any part of the number of shares of Class B
Common Stock held by Ben Cohen before July 30, 1998,
as adjusted for any stock splits, stock dividends or
similar corporate transaction PLUS (C) all or any
part of the number of shares of Class B Common Stock
held by Jerry Greenfield before July 30, 1998, as
adjusted for any stock splits, stock dividends or
similar corporate transaction PLUS (D) all or any
part of the number of shares of Class B Common Stock
held by Jeffrey Furman before July 30, 1998, as
adjusted for any stock splits, stock dividends or
similar corporate transaction.
(x) if Ben Cohen and Jerry Greenfield act together
(A) 15% of the shares of Common Stock then
outstanding PLUS (B) all or any part of the number of
shares of Class B Common Stock held by Ben Cohen
before July 30, 1998, as adjusted for any stock
splits, stock
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dividends or similar corporate transaction PLUS (C)
all or any part of the number of shares of Class B
Common Stock held by Jerry Greenfield before July 30,
1998, as adjusted for any stock splits, stock
dividends or similar corporate transaction.
(y) if Ben Cohen and Jeffrey Furman act together (A)
15% of the shares of Common Stock then outstanding
PLUS (B) all or any part of the number of shares of
Class B Common Stock held by Ben Cohen before July
30, 1998, as adjusted for any stock splits, stock
dividends or similar corporate transaction PLUS (C)
all or any part of the number of shares of Class B
Common Stock held by Jeffrey Furman before July 30,
1998, as adjusted for any stock splits, stock
dividends or similar corporate transaction.
(z) if Jerry Greenfield and Jeffrey Furman act
together (A) 15% of the shares of Common Stock then
outstanding PLUS (B) all or any part of the number of
shares of Class B Common Stock held by Jerry
Greenfield before July 30, 1998, as adjusted for any
stock splits, stock dividends or similar corporate
transaction PLUS (C) all or any part of the number of
shares of Class B Common Stock held by Jeffrey Furman
before July 30, 1998, as adjusted for any stock
splits, stock dividends or similar corporate
transaction.
(V) Conopco, Inc., a New York corporation ("Conopco"), and its
Affiliates solely to the extent any such Person becomes the
Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding by reason of the execution of, or the
consummation of the transactions contemplated by, the
Agreement and Plan of Merger, dated as of April 11, 2000 (the
"Merger Agreement"), by and among Conopco, Vermont All Natural
Expansion Company and the Company and the Stock Option
Agreement, dated as of April 11, 2000, by and between Conopco
and the Company; PROVIDED, that this Section 1(aa')(V) shall
be of no further force and effect at and after such time as
the Merger Agreement is terminated pursuant to Section 8.01
thereof.
3. Section 1 (cc) is amended by deleting the phrase "or (iv)" after
clause (iii) in the last sentence and adding the following language:
", (iv) an Exempt Person, or (v)"
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4. Section 24(a) is amended by deleting the phrase "or (iv)" after
clause (iii) in the last sentence and adding the following language:
", (iv) an Exempt Person, or (v)"
[The Remainder of the Page is Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to the Class A Rights Agreement to be duly executed as of the day and year first
above written.
BEN & JERRY'S HOMEMADE, INC.
By:
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Title: Chief Financial Officer
Attest:
By:
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AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
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Title:
Attest:
By:
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