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AMENDMENT NO. 1
TO
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CIMCO, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 33-0251163
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
265 Briggs Avenue,
Costa Mesa, California 92626
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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
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:
Series A Junior Participating Preferred Stock,
par value $.01 per share (the "Preferred Stock")
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(Title of Class)
Preferred Stock Purchase Rights (the "Rights")
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(Title of Class)
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This Amendment No. 1 amends and supplements the Form 8-A ("Form 8-A")
filed by the Company with the Securities and Exchange Commission on December
16, 1992. Except as otherwise expressly set forth herein, the information set
forth in the Form 8-A remains unchanged. Each capitalized term herein not
otherwise defined herein shall have the meaning ascribed thereto by the Form
8-A.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On December 19, 1995, the Company executed Amendment Number One (the
"Rights Amendment") to the Stockholder Rights Agreement, dated as of December 5,
1992, as amended (as so amended, the "Company Rights Agreement"), between the
Company and First Interstate Bank of California (the "Rights Agent"). The Rights
Amendment is being made pursuant to an Agreement and Plan of Merger dated as of
December 19, 1995 (the "Merger Agreement"), among Parent, Purchaser and the
Company, which provides, among other things, for the amendment of the Company
Rights Agreement upon the terms and subject to the conditions of the Merger
Agreement, The Merger Agreement relates to a tender offer (the "Offer") made by
Hanwest, Inc. ("Purchaser"), a Delaware corporation and a wholly-owned
subsidiary of M.A. Hanna Company, a Delaware corporation ("Parent") for all of
the Company's Common Stock, par value $.01 per share (the "Common Stock"),
including the associated stock purchase rights (the "Rights") issued pursuant to
the Company Rights Agreement (collectively, the "Shares") at a price of $10.50
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated December 27, 1995 (the
"Offer to Purchase") and the related Letter of Transmittal (which together
constitute the "Offer Documents"), and the subsequent merger (the "Merger") of
Purchaser with and into the Company, which will continue as the surviving
corporation following the Merger.
The Merger Agreement provides that, as of the execution and delivery of
the Merger Agreement, the Company Rights Agreement has been amended to provide
that the execution and delivery of the Merger Agreement and the Stockholder
Tender Agreement and the consummation of the transactions contemplated thereby
will not cause (a) Parent or Purchaser to become an "Acquiring Person" (as such
term is defined in the Company Rights Agreement), (b) the "Distribution Date"
(as such term is defined in the Company Rights Agreement) to occur, (c) the
provisions of Section 13(a) of the Company Rights Agreement to be applicable in
respect of capital stock of the Purchaser or the Parent or the capital stock of
any affiliate of the Purchaser or the Parent or (d) any adjustment under the
provisions of Section 11(a) of the Company Rights Agreement. Accordingly, the
Rights Amendment provides that neither Purchaser nor Parent, nor any Affiliate
nor any Associate of Purchaser or Parent, shall be deemed an "Acquiring Person;"
no "Distribution Date" (as such terms are defined in the Rights Agreement) shall
be deemed to have occurred; and Sections 11(a) and 13(a) provisions shall not
apply to Purchaser, Parent or their Affiliates or Associates, solely as the
result of the approval, execution or delivery of the Merger Agreement or the
Stockholder Tender Agreement (as defined in the Merger Agreement) or the
consummation of the transactions contemplated by the Merger Agreement or the
Stockholder Tender Agreement.
This summary description of the Rights Amendment does not purport to be
complete and is qualified in its entirety by reference to the Exhibits hereto,
each of which is incorporated herein by this reference. The Rights Agreement has
been filed with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A filed December 16, 1992. A copy of the Rights
Agreement is available to stockholders from the Company free of charge. The
Rights Amendment is described in the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 as filed by the Company with the Securities and
Exchange Commission on December 27, 1995 (including exhibits, the "Statement")
under Item 3.(b) under the heading "RIGHTS AGREEMENT" on pages 12 and 13 of the
Statement, which is hereby incorporated by reference. Such information is filed
herewith as an Exhibit. The Rights Amendment, which was previously filed as an
Exhibit to the Statement, is also incorporated herein by this reference.
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ITEM 2. EXHIBITS.
1. Rights Agreement, dated as of December 5, 1992, between the Company
and First Interstate Bank of California, as Rights Agent, which
includes: (i) as Exhibit A thereto a copy of the Certificate of
Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, (ii) as Exhibit B thereto the Form
of Rights Certificate, and (iii) Exhibit C thereto the Summary of
Rights to Purchase Preferred Stock. (Incorporated by reference to
Exhibit 1 to the Company's Registration Statement on Form 8-A filed
December 16, 1992.)
2. Amendment Number One to Rights Agreement, dated as of December 19,
1995, between the Company and First Interstate Bank of California,
as Rights Agent. (Incorporated by reference to Exhibit (c)(12) to
the Company's Solicitation/Recommendation Statement on Schedule
14D-9 as filed by the Company with the Securities and Exchange
Commission on December 27, 1995.)
3. Information under the heading "RIGHTS AGREEMENT" is incorporated by
reference to pages 12 and 13 of the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 as filed by
the Company with the Securities and Exchange Commission on December
27, 1995.*
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* The incorporated information is 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, thereunto duly authorized.
CIMCO, INC.
DATED: December 28, 1995 By: RUSSELL T. GILBERT
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Name: Russell T. Gilbert
Title: President and Chief Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
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4.1 Rights Agreement, dated as of December 5, 1992, between the
Company and First Interstate Bank of California, as Rights Agent,
which includes: (i) as Exhibit A thereto a copy of the
Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock, (ii) as Exhibit B thereto
the Form of Rights Certificate, and (iii) Exhibit C thereto the
Summary of Rights to Purchase Preferred Stock. (Incorporated by
reference to Exhibit 1 to the Company's Registration Statement on
Form 8-A filed December 16, 1992.)
4.2 Amendment Number One to Rights Agreement, dated as of December
19, 1995, between the Company and First Interstate Bank of
California, as Rights Agent. (Incorporated by reference to
Exhibit (c)(12) to the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 as filed by the Company with the
Securities and Exchange Commission on December 27, 1995.)
4.3 Information under the heading "RIGHTS AGREEMENT" is incorporated
by reference to pages 12 and 13 of the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 as filed
by the Company with the Securities and Exchange Commission on
December 27, 1995.*
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* The incorporated information is filed herewith.
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EXHIBIT 4.3
THE RIGHTS AGREEMENT. The following summary of the Company's Rights
Agreement, and the rights granted to the Company's stockholders pursuant thereto
(the "Rights"), is based upon the Company's Current Report on Form 8-K dated
December 5, 1992 (the "Company 8-K").
Pursuant to the Rights Agreement, on December 5, 1992, the Board of
Directors of the Company declared a dividend of one Right for each Share. The
dividend was payable as of the close of business on December 17, 1992 to the
stockholders of record on that date. Each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $.01 per share (the "Preferred
Shares"), of the Company at a price of $25 per one one-hundredth of a Preferred
Share (the "Purchase Price"), subject to adjustment.
Until the earlier to occur of (a) 10 days following a public
announcement that a person or group of affiliated or associated persons has
acquired beneficial ownership of 20% or more of the outstanding Shares (an
"Acquiring Person") or such earlier date as a majority of the Board becomes
aware of the existence of an Acquiring Person (the "Stock Acquisition Date") or
(b) 10 days following the commencement of a tender offer or exchange offer that
would result in a person or group becoming an Acquiring Person (the earlier of
such dates being called the "Distribution Date"), the Rights will be evidenced
by the certificates for Shares.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender for transfer of
any certificates for Shares will also constitute the surrender for transfer of
the Rights associated with the Shares represented by such certificates. The
Rights Agreement further provides that, as soon as practicable following the
Distribution Date, separate certificates for Rights will be mailed by the
Company or the Rights Agent to holders of record of the Shares as of the close
of business on the Distribution Date.
The Rights will expire on December 4, 2002 (the "Final Expiration
Date"), unless the Rights are earlier redeemed by the Company.
The Purchase Price payable and the number of Preferred Shares or other
securities or property issuable upon exercise of the Rights are subject to
adjustment from time to time as provided in the Rights Agreement.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a preferential quarterly
dividend payment of the greater of $.25 per share or 100 times the dividend
declared per Share. In the event of liquidation, the holders of the Preferred
Shares will be entitled to a minimum preferential liquidation payment of the
greater of $100 per share or 100 times the payment made per Share. Each
Preferred Share will have 100 votes, voting together as a single class with the
Shares. Finally, in the event of any merger, consolidation or other transaction
in which Shares are exchanged for or changed into other stock or securities,
cash and/or other property, each Preferred Share will be entitled to receive 100
times the amount received per Share. Because of the nature of the Preferred
Shares' dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a Preferred Share purchasable upon exercise of each
Right should, according to the Company 8-K, approximate the value of one Share.
If any person becomes an Acquiring Person (except pursuant to an offer
for all outstanding shares of Common Stock which a majority of the independent
directors who are not affiliated with the Acquiring Person determines to be fair
to and otherwise in the best interests of the Company and its stockholders),
then the Rights Agreement requires that proper provision be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring Person
and certain affiliated or associated persons (which will thereafter be void),
will thereafter have the right to receive upon exercise that number of Shares
(or, in certain circumstances, other securities or cash) having a market value
of two times the exercise price of the Right. In the event that the Company is
acquired in a merger or other business combination transaction or 50% or more of
the assets or earning power
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of the Company and its subsidiaries is sold or transferred, the Rights Agreement
requires that proper provisions be made so that each holder of a Right will
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 that at the time of such transaction will have a market
value of two times the exercise price of the Right.
The Rights Agreement provides that, at any time prior to the close of
business on the earlier of (a) the Stock Acquisition Date and (b) the Final
Expiration Date, the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right. The redemption period may
be extended by the Board by amending the Rights Agreement prior to the time when
the Rights become nonredeemable.
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.
Other than those provisions relating to the redemption price of the
Rights or the Final Expiration Date, any of the provisions of the Rights
Agreement may be supplemented or amended by the Company prior to the
Distribution Date, without approval of the Rights holders, whether or not a
supplement or amendment is adverse to the Rights holders. After the Distribution
Date, any provisions of the Rights Agreement (other than those provisions
relating to the redemption price of the Rights or the Final Expiration Date) may
be amended by the Company in order to make changes which do not materially and
adversely affect the interests of holders of Rights (other than any Acquiring
Person), provided, however, that the Rights Agreement may not be amended to
lengthen (i) the time period governing redemption or the time period during
which the Rights Agreement may be amended at the sole discretion of the Company
at such time as the Rights are not redeemable, or (ii) any other time period
unless such amendment is for the benefit of the Rights holders (other than any
Acquiring Person).
The foregoing summary of the Rights Agreement does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement
and the other documents included in the Company 8-K. The Company 8-K are
available for inspection and copies thereof may be obtained by written request
mailed to: Chief Financial Officer, Cimco, Inc., 265 Briggs Avenue, Costa Mesa,
California 92626.
On December 19, 1995, the Board authorized the amendment of the Rights
Agreement to assure that the execution and delivery of the Merger Agreement and
the Stockholder Tender Agreement and the consummation of the transactions
contemplated thereby will not cause (i) the defined term "Acquiring Person" to
apply to the Parent or the Purchaser, (ii) a "Distribution Date" to occur, (iii)
the provisions of Section 13(a) of the Rights Agreement to be applicable in
respect of the capital stock of the Purchaser or any affiliate thereof or (iv)
any adjustment under the provisions of Section 11(a) of the Rights Agreement.
The amendment was executed by the parties to the Rights Agreement on December
19, 1995. Accordingly, the operation of the Rights Agreement will not affect the
Offer or the Merger.
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