UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Penn Engineering & Manufacturing Corp.
(Exact name of registrant as specified in its charter)
Delaware 23-0951065
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
P.O. Box 1000
Danboro, Pennsylvania 18916
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is
to be registered to be registered
Class A Common Stock, The New York Stock Exchange
par value $.01 per share
Common Stock, The New York Stock Exchange
par value $.01 per share
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(g) of the Act:
None.
<PAGE>
Item 1. Description of Registrant's Securities to be
Registered.
The following summary description is subject to the detailed provisions
of the Company's Certificate of Incorporation, as amended, and the Company's
By-laws, as amended, and does not purport to be complete and is qualified in its
entirety by reference thereto.
The authorized capital stock of the Company consists of 20,000,000
shares of Common Stock, par value $.01 per share, and 3,000,000 shares of Class
A Common Stock, par value $.01 per share.
Voting
The holders of shares of Class A Common Stock are entitled to one vote
per share on any matter to be voted on by the stockholders of the Company. There
is no provision in the Company's Certificate of Incorporation permitting
cumulative voting. The holders of shares of Common Stock are not entitled to
vote on any matter to be voted on by the stockholders of the Company, except as
required under the Delaware General Corporation Law (the "DGCL") or the
Company's Certificate of Incorporation.
Under the Certificate of Incorporation of the Company and the DGCL,
only the affirmative vote of the holders of a majority of the outstanding shares
of Class A Common Stock entitled to vote is required to amend the Certificate of
Incorporation or to authorize additional shares of Common Stock or Class A
Common Stock; and the affirmative vote of the holders of a majority of the Class
A Common Stock is required to approve any merger or consolidation of the Company
with or into any other corporation or sale of substantially all its assets or to
approve the dissolution of the Company, subject to certain existing
anti-takeover provisions of the Company's Certificate of Incorporation that
requires the vote of the holders of at least 80% of the outstanding Class A
Common Stock if such transaction is with a related person and is not approved by
the requisite vote of the Company's Board of Directors.
The holders of the Class A Common Stock will elect the entire Board of
Directors. In addition, as permitted under the DGCL, the Certificate of
Incorporation provides that the number of authorized shares of either class may
be increased or decreased, but not below the number of shares then outstanding,
-1-
<PAGE>
by the affirmative vote of the holders of a majority of the Class
A Common Stock.
Under the DGCL, the holders of Common Stock are entitled to vote on
proposals to change the par value of the Common Stock or to alter or change the
powers, preferences or special rights of the shares of Common Stock, which may
affect them adversely.
Dividends and Distributions
Each share of Common Stock and Class A Common Stock is equal in respect
to dividends and other distributions in cash, stock or property, including
distributions in connection with any recapitalization and upon liquidation,
dissolution or winding up of the Company, except that (i) a dividend or
distribution in cash or property on a share of Common Stock may be greater than
any dividend or distribution in cash or property on a share of Class A Common
Stock, and (ii) dividends or other distributions payable on the Common Stock and
Class A Common Stock in shares of capital stock shall be made to all holders of
the Common Stock and Class A Common Stock and may be made (a) in shares of
Common Stock to the holders of Common Stock and to the holders of Class A Common
Stock, (b) in shares of Class A Common Stock to the holders of Class A Common
Stock and in shares of Common Stock to the holders of Common Stock, or (c) in
any other authorized class or series of capital stock to the holders Common
Stock and Class A Common Stock. In no event will either Common Stock or Class A
Common Stock be split, subdivided or combined unless the other is
proportionately split, subdivided or combined.
Although the Board of Directors has authority under the Certificate of
Incorporation to pay dividends and make distributions on the Common Stock in
amounts greater than on the Class A Common Stock, the Board of Directors
currently intends to pay dividends on an equal per share basis.
There are no redemption or sinking fund provisions applicable to the
Common Stock or the Class A Common Stock. Holders of Common Stock and Class A
Common Stock are not subject to further calls or assessments by the Company. All
outstanding shares of Common Stock, when validly issued, will be fully paid and
non-assessable.
Except as otherwise required by the DGCL or as otherwise provided in
the Company's Certificate of Incorporation, each share of Common Stock and each
share of Class A Common Stock have identical powers, preferences and rights in
all other respects.
Mergers and Consolidations
Each holder of Common Stock and Class A Common Stock is entitled to
receive the same per share consideration in a merger or consolidation of the
Company.
-2-
<PAGE>
Convertibility
Neither the Common Stock nor the Class A Common Stock will be
convertible into another class of common stock or any other security of the
Company, except that in the event that a change of control (as defined herein
and in the Company's Certificate of Incorporation) occurs, (i) all of the then
issued shares of Common Stock will automatically convert into an equal number of
shares of Class A Common Stock, and (ii) all rights, warrants, or options to
purchase shares of Common Stock, or other securities convertible into shares of
Common Stock, will be converted into similar rights, warrants, or options to
purchase, or other securities convertible into, an equal number of shares of
Class A Common Stock. A change of control shall be deemed to have occurred if:
(i) any person or group of persons, other than members of the Swanstrom Family
(as defined herein), directly or indirectly, purchases, or otherwise becomes the
beneficial owner of, or has the right to acquire such beneficial ownership of,
or, either solely or with others, acquires the right to vote or direct the
disposition of voting securities of the Company, representing more than 50% of
the combined voting power of all outstanding voting securities of the Company,
or (ii) during any period of two consecutive years, the individuals who at the
beginning of such period constitute the Board of Directors (together with any
new director whose election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least two thirds of the directors
then still in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute at least a majority of the members of the Board of
Directors then in office. For purposes of this change of control provision, the
"Swanstrom Family" means Kenneth A. Swanstrom, Daryl L. Swanstrom, their
respective spouses, descendants, heirs, estates, trusts in which any such person
has a beneficial interest, and any partnership, corporation, or other entity in
which any such person has a controlling interest.
Certain Certificate of Incorporation and By-law Provisions; Delaware
Anti-Takeover Provisions
The Certificate of Incorporation and By-laws of the Company and
Delaware law contain certain provisions that may enhance the likelihood of
continuity and stability in the composition of the Board of Directors and may
discourage a future unsolicited takeover of the Company. These provisions could
have the effect of discouraging certain attempts to acquire the Company or
remove incumbent management, including incumbent members of the Board of
Directors, even if some or a majority of the Company's stockholders deemed such
an attempt to be in their best interests.
-3-
<PAGE>
Article VIII of the Company's Certificate of Incorporation provides
that the Board of Directors may consider any and all of the following in
connection with its determination whether to oppose a tender or other offer for
the Company's securities: (i) whether the offer price is acceptable based upon
the historical and present operating results or financial condition of the
Company; (ii) whether a more favorable price could be obtained for the Company's
securities in the future; (iii) the impact that an acquisition of the Company
would have on the employees and customers of the Company and the communities in
which the Company operates; (iv) the reputation and business practices of the
offeror and its management and affiliates as they would effect the employees and
customers of the Company and the future value of the Company's securities; (v)
the value of the securities, if any, which the offeror is offering in exchange
for the Company's securities and (vi) any antitrust or other legal and
regulatory issues that are raised by the offer. If the Board of Directors
determines that an offer should be rejected, Article VIII authorizes the Board
of Directors to take any lawful action to accomplish that purpose, including,
but not limited to, advising stockholders not to accept the offer, acquiring the
Company's securities, instituting litigation, selling or otherwise issuing
authorized but unissued securities or treasury stock, acquiring a company to
create antitrust or other regulatory problems, or soliciting a more favorable
offer.
Article IX of the Company's Certificate of Incorporation provides that
the Company shall not become a party to a business combination with a related
person unless: (i) the business combination is approved by a majority vote of
the Board of Directors of the Company either at a time prior to the time the
related person became a related person or after such time if the related person
obtains the affirmative vote of at least 80% of the Board of Directors of the
acquisition of the shares that caused such person to become a related person;
(ii) the business combination is approved by the affirmative vote of 80% of the
continuing directors and (a) the ratio of the amount of the consideration to be
received per share of Class A Common Stock of the Company to the market price
thereof immediately prior to the announcement of the business combination is at
least as great as the ratio of the highest per share price that the related
person paid in acquiring any shares prior to such business combination to the
market price per share immediately prior to the initial acquisition by the
related person of any shares of Class A Common Stock, (b) the amount of the
consideration to be received per share in the business combination is not less
than the highest price per share paid by the related person in acquiring any
shares of Class A Common Stock and is not less than the book value per share as
reflected on the Company's balance sheet for the immediately preceding fiscal
quarter and (c) the consideration to be received per share other than by the
related person is in the same form and same kind as the consideration paid by
the related person in acquiring Class A Common Stock already owned by the
related
-4-
<PAGE>
person, and (iii) if there is not full compliance with the provisions as
described in clauses (i) and (ii) of this paragraph, the business combination
must be approved by the affirmative vote of the holders of 80% of the issued and
outstanding Class A Common Stock of the Company.
For purposes of Article IX, a "business combination" includes a sale of
all or substantially all of the assets to the related person, a merger or
consolidation of the Company with the related person or any affiliate of the
related person, any reclassification of securities or other transaction or
series of transactions that has the effect of increasing the proportionate
amount of the shares beneficially owned by the related person or the acquisition
by the Company of all of the assets or business of the related person. A
"related person" includes any person who beneficially owns 10% or more of the
Class A Common Stock of the Company or who had been the beneficial owner of 10%
or more of the Class A Common Stock of the Company at any time within five years
preceding the business combination. A "continuing director" is defined as an
individual who was first elected a director prior to May 1985, who was first
elected a director prior to the time that the related person became a 10%
beneficial owner or who was elected as a continuing director by a majority of
the then continuing directors.
The By-laws of the Company provide for a classified Board of Directors
consisting of three classes as nearly equal in size as possible. The
classification of the Board of Directors could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
acquiring, control of the Company.
The Company is a Delaware corporation and consequently is subject to
certain anti-takeover provisions of the DGCL. The business combination provision
contained in Section 203 of the DGCL ("Section 203") defines an interested
stockholder of a corporation as any person that (i) owns, directly or
indirectly, or has the right to acquire, 15% or more of the outstanding voting
stock of the corporation or (ii) is an affiliate or associate of the corporation
and was the owner of 15% or more of the outstanding voting stock of the
corporation at any time within the three-year period immediately prior to the
date on which it is sought to be determined whether such person is an interested
stockholder; and the affiliates and the associates of such person. Under Section
203, a Delaware corporation may not engage in any business combination with any
interested stockholder 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, (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder
-5-
<PAGE>
owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced (excluding, for determining the number of shares
outstanding, (a) shares owned by persons who are directors and officers and (b)
employee stock plans, in certain instances), 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 by at least 66-2/3%
of the outstanding voting stock that is not owned by the interested stockholder.
The restrictions imposed by Section 203 will not apply to a corporation if the
corporation, by the action of its stockholders holding a majority of the
outstanding stock, adopts an amendment to its certificate of incorporation or
by-laws expressly electing not to be governed by Section 203 (such amendment
will not be effective until 12 months after adoption and shall not apply to any
business combination between such corporation and any person who became an
interested stockholder of such corporation on or prior to such adoption).
The Company has not elected to opt out of Section 203, and the
restrictions imposed by Section 203 apply to the Company. Section 203 could,
under certain circumstances, make it more difficult for a third party to gain
control of the Company, deny stockholders the receipt of a premium on their
Common Stock and Class A Common Stock and have a depressive effect on the market
price of the Common Stock and Class A Common Stock.
-6-
<PAGE>
Item 2. Exhibits.
Exhibit No. Description of Exhibit
- ------------ ----------------------
1.1 Certificate of Incorporation of the
Registrant, as amended,
(incorporated by reference to
Exhibit (3)(A) of Registrant's Form
10-K Annual Report for the fiscal
year ended December 31, 1987).
1.2 Amendment to Article IV of the
Certificate of Incorporation of the
Registrant. (Incorporated by reference
to Registrant's Form 8-A Registration
Statement filed with the Commission on
May 15, 1996)
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit
3(ii) of Registrant's Form 10-K Annual
Report for the fiscal year ended
December 31, 1994).
3 Specimen Stock Certificate for the
Registrant's Class A Common Stock,
par value $.01 per share.
(Incorporated by reference to
Registrant's Form 8-A Registration
Statement filed with the Commission
on May 15, 1996)
4 Specimen Stock Certificate for the
Registrant's Common Stock, par value
$.01 per share. (Incorporated by
reference to Registrant's Form 8-A
Registration Statement filed with the
Commission on May 15, 1996)
-7-
<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.
PENN ENGINEERING &
MANUFACTURING CORP.
Dated: June 11, 1996 By:/s/ Kenneth A. Swanstrom
------------------------
Kenneth A. Swanstrom,
Chairman of the Board,
President and Chief Executive
Officer
-8-
