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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
HILLS STORES COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 31-1153510
(State or other jurisdiction (I.R.S. employer
of incorporation) identification number)
15 DAN ROAD 02021
CANTON, MASSACHUSETTS (Zip Code)
(Address of principal executive offices)
<TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
<CAPTION>
TITLE OF EACH CLASS TO BE REGISTERED NAME OF EACH EXCHANGE ON WHICH
EACH CLASS IS TO BE REGISTERED
<S> <C>
RIGHTS TO PURCHASE
SERIES B PARTICIPATING CUMULATIVE NEW YORK STOCK EXCHANGE
PREFERRED STOCK
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
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Item 1. Description of Registered Securities.
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On October 18, 1995, the Board of Directors of Hills Stores Company
(the "Company") approved an Amendment (the "Amendment to Rights Agreement") to
its Rights Agreement dated as of August 16, 1994 (the "Rights Agreement"),
between the Company and Chemical Bank, as Rights Agent (the "Rights Agent").
The Amendment to Rights Agreement raises the Ownership Threshold (as defined
below), the point at which the so-called "flip-in" rights under the Rights
Agreement are activated, from 15% to 20%. The Amendment to Rights Agreement
also modifies certain provisions in the definition of "Beneficial Ownership"
and "Beneficial Owner" included in the Rights Agreement to permit shareholders,
without activating the "flip-in" rights, (i) to share information or engage in
preliminary discussions concerning the possibility of entering into agreements,
arrangements or understandings for the purpose of acquiring, holding, voting or
disposing of any securities of the Company or (ii) to enter into any such
agreements, arrangements or understandings with the prior authorization of the
Board of Directors of the Company. Set forth below is a summary of the Rights
Agreement, giving effect to these amendments.
On August 16, 1994, the Board of Directors of the Company distributed
one Right for each outstanding share of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), and each outstanding share of the
Company's Series A Convertible Preferred Stock, par value $.10 per share
(collectively with the Common Stock, the "Capital Shares"). The Rights were
issued to the holders of record of Capital Shares outstanding on August 16,
1994, and with respect to Capital Shares issued thereafter until the
Distribution Date (as defined below) and, in certain circumstances, with
respect to Capital Shares 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 one-thousandth (1/1,000th) of a share of
Series B Participating Cumulative Preferred Stock, par value $.10 per share, of
the Company (the "Preferred Shares") at a price of $75 (the "Purchase Price").
The description and terms of the Rights are set forth in (i) the Rights
Agreement which was filed as an exhibit to the Company's Registration Statement
on Form 8-A dated August 23, 1994, and (ii) the Amendment to Rights Agreement
filed as an exhibit hereto.
Until the earlier of (i) such time as the Company learns that a person
or group (including any affiliate or associate of such person or group) has
acquired, or has obtained the right to acquire, beneficial ownership of an
amount equal to or greater than such person's or group's Ownership Threshold
(as defined below) of the outstanding Capital Shares, other than pursuant to a
Qualifying Offer (as defined below) (such person or group being an "Acquiring
Person"), and (ii) such date, if any, as may be designated by the Board of
Directors of the Company
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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 person or group becoming the beneficial owner of an amount equal
to or greater than such person's or group's Ownership Threshold (as defined
below) of the outstanding Capital Shares, other than pursuant to a Qualifying
Offer (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.
"Ownership Threshold" means, with respect to any person, the
beneficial ownership of 20% of the aggregate of the classes of Capital Stock at
any time outstanding. A person will not be deemed to beneficially own any
Capital Stock 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 on August 16, 2004 (the "Expiration Date") unless earlier redeemed by
the Company as described below.
The number of Preferred Shares 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 or the Preferred Shares, whether by reason of
stock dividends, stock splits, recapitalizations, mergers, consolidations,
combinations or exchanges of securities, split-ups, splitoffs, 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 or Preferred Shares, as the
case may be (other than distribution of the Rights or regular quarterly cash
dividends) or otherwise.
The Preferred Shares are authorized to be issued in fractions which
are an integral multiple of one one-thousandth
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(1/1,000th) of a Preferred Share. The Company may, but is not required to,
issue fractions of shares upon the exercise of Rights, and, in lieu of
fractional shares, the Company may issue certificates or utilize a depository
arrangement as provided by the terms of the Preferred Shares and, in the case of
fractions other than one one-thousandth (1/1,000th) of a Preferred Share or
integral multiples thereof, may make a cash payment based on the market price of
such shares.
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 one one-thousandths (1/1,000ths) of a Preferred Share equivalent to
the number of Capital Shares 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 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
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or subsequent holder) will be unable to exercise or transfer any such Right.
The Rights Plan will not apply to any Qualifying Offer. Accordingly,
the Rights will not become exercisable in the case of a tender offer that
constitutes a Qualifying Offer or of a merger or business combination
consummated in compliance with the requirements of a Qualifying Offer. The
Rights Plan defines a "Qualifying Offer" as an all-cash tender offer for all
outstanding Capital Shares which meets the following requirements: (i) the
person or group making the tender offer must, prior to or upon commencing such
offer, have provided to the Company firm written commitments from responsible
financial institutions, which have been accepted by such person or group, to
provide, subject only to customary terms and conditions, funds for such offer
that, when added to the amount of cash and cash equivalents that such person or
group then has available and has irrevocably committed in writing to the Company
to utilize for purposes of the offer, will be sufficient to pay for all Capital
Shares outstanding on a fully diluted basis pursuant to the offer and the
second-step transaction required by clause (v) below and all related expenses,
together with copies of all written materials prepared by such person or group
for such financial institutions in connection with obtaining such financing
commitments; (ii) such person or group must own, after consummating such offer,
Capital Shares representing a majority of the then outstanding Capital Shares;
(iii) such offer must in all events remain open for at least 45 business days
and must be extended for at least 20 business days after the last increase or
permitted decrease in the price offered and after any bona fide higher
alternative offer is made (except in certain limited circumstances set forth in
the Rights Agreement); (iv) such offer is accompanied by a written opinion, in
customary form, of a nationally recognized investment banking firm which is
addressed to the holders of Capital Shares other than such person or group and
states that the price to be paid to such holders pursuant to the offer is fair
from a financial point of view to such holders and which includes any written
presentation of such firm showing the analysis and range of values underlying
such conclusion; and (v) prior to or upon commencing such offer, such person or
group must irrevocably commit in writing to the Company (x) to consummate
promptly upon completion of the offer a transaction or transactions whereby all
remaining Capital Shares will be acquired at the same price per share paid
pursuant to the offer, subject only to the condition that the Board has granted
any approvals required to enable such person or group to consummate such
transaction or transactions without obtaining the vote of any other stockholder,
(y) that such person or group will not amend such offer to reduce the per share
price offered (except in certain limited circumstances set forth in the Rights
Agreement), change the form of consideration offered, reduce the number of
shares being sought or in any other respect which is materially adverse to the
Company's stockholders, and (z) that such person or group will not make any
offer for any equity securities of the
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Company for six months after commencement of the original offer if the original
offer does not result in the tender of the number of shares required to be
purchased pursuant to clause (ii) above, unless another tender offer by another
party for all outstanding Common Stock is commenced that (a) constitutes a
Qualifying Offer or (b) is approved by the Company's Board of Directors (in
which event any new offer by such person or group must be at a price no less
than that provided for in such approved offer).
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 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,
the time during which the Rights may be redeemed or the terms of the Preferred
Shares), 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.
The Rights have certain antitakeover effects. The Rights will cause
substantial dilution to a person or group that 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 a Qualifying Offer or with a third party approved by the Board of
Directors of the Company since the Board of Directors of the
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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, the
Certificate of Designation of the Preferred Shares specifying the terms of the
Preferred Shares (Exhibit A to the Rights Agreement) and the form of Right
Certificate (Exhibit B to the Rights Agreement) were filed as exhibits to the
Company's Registration Statement on Form 8-A dated August 23, 1994. 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.
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Item 2. Exhibits.
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1. Rights Agreement dated as of August 16, 1994, between Hills Stores
Company and Chemical Bank, as Rights Agent*
2. Form of Certificate of the Voting Powers, Preferences and Relative,
Participating, Optional and other Special Rights, Qualifications,
Limitations or Restrictions of Series B Participating Cumulative
Preferred Stock of Hills Stores Company (Exhibit A to the Rights
Agreement)*
3. Form of Right Certificate (Exhibit B to the Rights Agreement).*
4. Amendment dated as of October 18, 1995, to the Rights Agreement dated
as of August 16, 1994, between Hills Stores Company and Chemical Bank,
as Rights Agent.
________________________________________________________________________________
*Incorporated by reference to the Company's Registration Statement on Form 8-A
dated August 23, 1994.
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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, thereunto duly authorized.
HILLS STORES COMPANY,
Dated: October 18, 1995 By: /s/William K. Friend
-----------------------------
Name: William K. Friend
Title: Vice President-Secretary
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Exhibit 4
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AMENDMENT TO RIGHTS AGREEMENT
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AMENDMENT dated as of October 18, 1995, between HILLS STORES COMPANY, a
Delaware corporation (the "Company"), and CHEMICAL BANK, a New York banking
corporation, as Rights Agent (the "Rights Agent"), to Rights Agreement dated as
of August 16, 1994, between the Company and the Rights Agent.
WHEREAS, the Company and the Rights Agent have entered into a Rights
Agreement dated as of August 16, 1994 (the "Rights Agreement");
WHEREAS, Section 26 of the Rights Agreement provides that at any time prior
to the Distribution Date (as defined in the Rights Agreement), the Company may,
and the Rights Agent shall if the Company so directs, supplement or amend any
provision of the Rights Agreement (other than an amendment or supplement that
reduces the Redemption Price or provides for an earlier Expiration Date (each,
as defined in the Rights Agreement)) without the approval of any holder of the
Rights issued pursuant to the Rights Agreement;
WHEREAS, the Distribution Date has not occurred and this Amendment does not
reduce the Redemption Price or provide for an earlier Expiration Date; and
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Rights Agreement.
SECTION 2. The definition of "BENEFICIAL OWNER", "BENEFICIALLY OWN" and
"BENEFICIAL OWNERSHIP" on pages 2 and 3 of the Rights Agreement are deleted in
their entirety, and the following is substituted therefor:
"A Person shall be deemed the `BENEFICIAL OWNER' of, and shall be
deemed to `BENEFICIALLY OWN', and shall be deemed to have `BENEFICIAL
OWNERSHIP' of, any securities:
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(i) which such Person or any of such Person's
Affiliates or Associates is deemed to "beneficially own"
within the meaning of Section 13(d) of the Exchange Act or
Rule 13d-3 of the General Rules and Regulations promulgated
thereunder, in each case as in effect on the date of this
Rights Agreement; or
(ii) which such Person or any such Person's Affiliates
or Associates has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or
understanding (written or oral), or upon the exercise of
conversion rights, exchange rights, rights (other than the
Rights), warrants or options, or otherwise; PROVIDED,
HOWEVER, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, or to have Beneficial
Ownership of, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange thereunder,
or (B) the right to vote pursuant to any agreement,
arrangement or understanding (written or oral); PROVIDED,
HOWEVER, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if (1) the
agreement, arrangement or understanding (written or oral) to
vote such security arises solely from 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 applicable rules and
regulations under the Exchange Act and (2) the beneficial
ownership of such security is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (whether written or
oral) for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in clause
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(ii)(B) of this definition) or disposing of any securities of the
Company;
PROVIDED, HOWEVER, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, any security owned by any other Person, or any
of such other Person's Affiliates or Associates, solely by reason of
engaging in communications involving (A) the sharing of information with
such other Person or (B) preliminary discussions regarding the possibility
of entering into agreements, arrangements or understandings of the type
described in clause (iii) above or in Rule 13d-5 of the General Rules and
Regulations promulgated under the Exchange Act ("Rule 13d-5") until such
time as those communications actually result in such Person entering into
such an agreement, arrangement or understanding; and PROVIDED, FURTHER,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security owned by any other Person, or any of such
other Person's Affiliates or Associates, by reason of an agreement,
arrangement or understanding of the type described in clause (iii) above or
Rule 13d-5 if such agreement, arrangement or understanding was entered into
with the prior authorization of the Board of Directors of the Company.
Notwithstanding the foregoing, nothing contained in this
definition shall cause a Person ordinarily engaged in business as an
underwriter of securities to be the `Beneficial Owner' of, or to
`beneficially own', any securities acquired in a bona fide firm
commitment underwriting pursuant to an underwriting agreement with the
Company."
SECTION 3. The definition of "OWNERSHIP THRESHOLD" is deleted in its
entirety and the following is substituted therefor:
"`OWNERSHIP THRESHOLD' shall mean, with respect to any Person,
Beneficial Ownership of 20% of the aggregate of the classes of Capital
Shares at any time outstanding."
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SECTION 4. Except as expressly modified by this Amendment, the Rights
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
HILLS STORES COMPANY
By:___________________________
Name:
Title:
CHEMICAL BANK, as Rights Agent
By:___________________________
Name:
Title:
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