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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 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 7
Polaroid Corporation
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(Exact name of registrant as specified in its charter)
Delaware 04-17346SS
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
549 Technology Square, Cambridge, MA 02139
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
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(Title of Class)
Securities to be registered pursuant to Section 12(g) 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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Common Stock Purchase Rights New York Stock Exchange
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Item 1. Description of Securities to be Registered
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On July 13, 1998, Polaroid Corporation (the "Company") entered into the
Seventh Amendment (the "Amendment") to the Rights Agreement dated as of
September 9, 1986 (as amended, the "Rights Agreement") with BankBoston, N.A., as
successor Rights Agent.
The Amendment adds to the Rights Agreement a limited exception for an
inadvertent triggering of the Rights by a third party who has acquired 20% or
more of the Company's outstanding Common Stock solely for investment purposes
but has no intention of changing or influencing control of the Company. If the
Board makes a good faith determination that such person has become an Acquiring
Person inadvertently, this exception permits such person to divest itself of a
sufficient number of shares as promptly as practicable so that such person will
no longer be deemed an Acquiring Person.
The inadvertent trigger exception also provides that the Company's
repurchase and reduction of the number of common shares outstanding that raises
the proportion of shares of Common Stock beneficially owned by a person to more
than 20% but less than 25% or more will not cause such person to become an
Acquiring Person or require such person to divest itself of any shares. However,
in the event such person thereafter acquires any additional shares resulting in
ownership of 20% or more of the outstanding Common Stock, such acquisition will
trigger the Rights. Furthermore, if the Company's acquisition of Common Shares
causes a Person to own 25% or more of the outstanding Common Stock, such Person
must divest itself as promptly as practicable of a sufficient number of shares
to own less than 25% of the outstanding Common Stock. Such Person will also be
subject to prohibitions upon the acquisition of additional shares resulting in
beneficial ownership of 20% or more of the outstanding Common Stock.
The Amendment also appoints BankBoston, N.A., as successor
Rights Agent to succeed First Chicago Trust Company of New York
pursuant to the terms of the Rights Agreement.
A summary of the Company's Rights to Purchase Series A Participating
Cumulative Preferred Stock, as amended, follows. Capitalized terms not defined
herein shall have their meanings as set forth in the Rights Agreement.
Summary of Rights
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On September 9, 1986, the Board of Directors of the Company declared a
dividend for each share of Common Stock, par value $1 per share, in the form of
a Right to purchase one one-hundredth (1/100th) of a share of Series A
Participating Cumulative Preferred Stock, par value $1 per share, of the Company
(the "Preferred Shares") at a price of $200 (the "Purchase Price").
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An identical Right also attaches to all Common Shares issued after the initial
dividend disbursement.
The Rights do not in themselves represent any value separate from the
Common Stock and are not exercisable until the occurrence of a "Distribution
Date." A Distribution Date is defined as the earlier of (i) the tenth day after
the first public disclosure that any person or group (including an Affiliate or
Associate of such group) acquired beneficial ownership or the right to acquire
ownership of 20% or more of the outstanding Common Stock (such person or group
being called an "Acquiring Person"), (ii) the occurrence of any Triggering Event
or (iii) ten days after (or such later date as the Board may determine) the
commencement or an announcement of an intention to commence a tender offer the
consummation of which would result in the beneficial ownership of 30% or more of
the outstanding Common Stock.
A person is deemed to be an Acquiring Person if such person, together
with all Affiliates and Associates of such person, directly or indirectly,
beneficially owns 20% or more of the outstanding Common Stock. "Affiliate" is
defined in the Agreement to mean a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the person specified. "Associate" is defined to mean: (1) any
corporation or organization of which such person is an officer or partner or is,
directly or indirectly, the beneficial owner of 10% or more of any class of
equity securities, (2) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as trustee or
in a similar fiduciary capacity, and (3) any relative or spouse of such person
or any relative of such spouse who has the same home as such person or who is a
director or officer of the subject company or any of its parents or
subsidiaries.
Until a Distribution Date, after which the Rights become exercisable,
each certificate of Common Stock also represents one Right and is registered in
the name of the holders thereof. The Rights trade with the Common Stock and are
not required to be evidenced by a separate ownership certificate. 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. Following a Distribution Date, the Rights will trade separately from
the Common Stock, and separate certificates of representation will be issued as
soon as practicable. These separate Rights Certificates will thereafter evidence
the Rights.
Rights beneficially owned by holders of 20% or more of the outstanding
shares of Common Stock are not exercisable under any conditions and will be null
and void upon the occurrence of a Triggering Event.
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The Rights expire on July 1, 2000, but may be extended by the Board for
no more than seven years without formally amending the Rights Agreement. Prior
to authorizing any extension, the Board is required to put the question of
extending the expiration date of the plan to the stockholders of the Company;
however, the outcome of the vote is only for the information and guidance of the
Board and shall not limit the action of the Board.
After the Distribution Date, the Rights can become valuable under
various circumstances in which the payment of the Purchase Price will entitle
the holder thereof to more than one fraction of a share of Series A Preferred
Stock. A merger or other business combination to which the Company is a party,
or the sale, lease, exchange or other transfer (in one or more transaction) of
50% of its assets or assets representing 50% or more of its earning power
constitutes such a circumstance. If the Company is the surviving entity in such
a transaction, each Right would then entitle the holder to purchase for the
Purchase Price Common Stock of the Company with a market value of two times the
Purchase Price. If the Company is not the surviving entity in such a
transaction, then each Right would entitle the holder to purchase for the
Purchase Price capital stock or other securities of the acquiring entity or an
affiliate with publicly-traded common shares, having a market value of two times
the Purchase Price.
The Rights also become valuable in the event an Acquiring Person (i)
acquires beneficial ownership of 20% or more of the outstanding shares of Common
Stock, unless pursuant to an all cash tender offer for all outstanding shares of
Common Stock at a price and on other terms at least equal to the highest price
per share paid by such Acquiring Person within the two years immediately prior
to the Distribution Date or at any time thereafter and determined by the Board
to be fair and adequate or (ii) engages in certain "self-dealing" transactions
with the Company. In the case of either of such events, each Right will
thereafter entitle the holder of the Right to purchase for the Purchase Price
that number of shares (or fractions thereof) of Series A Preferred Stock
equivalent to the number of shares of Common Stock which at the time of the
transaction will have a market value of two times the Purchase Price.
The Rights may be redeemed only in whole, but not in part, at a price
of $.05 per Right (the "Redemption Price") by the Board at its option any time
prior to the earlier of (i) the tenth day following the Share Acquisition Date,
(ii) the occurrence of a Triggering Event or (iii) the date upon which the
Rights expire by terms of the Agreement. However, in the event the Company
receives an Offer (as defined below), the Company can only redeem the Rights by
way of shareholder action taken at a special meeting of shareholders called by
the Board for the purpose of voting on a resolution requesting the Board to
accept such Offer and which must be held not less than 90 and more than 120 days
after the date the Offer is received. Such shareholder
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4
action requires the affirmative vote of a majority of all shares of Common Stock
and any other stock entitled to vote in the election of directors and management
affairs of the Company, and is effective immediately prior to the consummation
of any tender offer consummated within 60 days after the special meeting at a
price per share equal to or greater than the price and with terms no less
favorable to those contained in the resolution adopted at the special meeting.
An "Offer" is defined in the Rights Agreement as a written proposal delivered to
the Company by any person which (i) provides for the acquisition of all the
outstanding shares of stock entitled to voting rights held by any person other
than the Offeror on the same terms for consideration that is at least 80% cash;
(ii) is accompanied by a written opinion of a nationally recognized investment
banking firm stating that the price to be paid is fair and includes any written
presentation showing the range of values underlying such conclusion; (iii) is
accompanied by written financing commitments for the full amount of all
financing together with all materials used in the credit decision; (iv) requests
the Company to call a special meeting and contains the written agreement of the
Offeror to pay at least one-half of the Company's costs of such special meeting;
(v) is conditioned upon a commitment of the Offeror to purchase a majority of
voting stock pursuant to the Offer; (vi) such offer by its terms (a) remains
open for at least 20 business days after the special meeting and an additional
10 business days after any change in price and (b) provides that after its
consummation the Offeror commits either to offer to acquire within 30 business
days all the remaining shares at the same price as paid in the Offer or to
initiate within 50 business days and consummate promptly thereafter a merger
providing such same price for all remaining shares; and (vii) is made by and on
behalf of an Offeror which is not a foreign issuer. In the determination of the
Offer's fairness, the Board retains the authority to reject, advise the
shareholders to reject, or take other action in response to the Offer necessary
to the exercise of its fiduciary duties.
Immediately upon shareholder adoption of a resolution approving the
Board's acceptance of an Offer, the ability of the Board to redeem the Rights
will terminate and the only existing right of a holder shall be to receive the
redemption price for the Rights.
At any time prior to the Distribution Date, the Company may supplement
or amend any provision of the Rights Agreement without the approval of any
holders of the Rights. From and after the Distribution Date, the Company may
amend the Rights Agreement without the approval of any holders of the Rights to
(i) cure any ambiguity or correct any defective provision or (ii) make any other
necessary or desirable changes which shall not adversely affect the interests of
the holders of the Rights. However, at any time when there shall be an Acquiring
Person, the Agreement may be supplemented or amended only if the Board of
Directors of the Company, with the concurrence of a majority of the
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Disinterested Directors, determines that such supplement or amendment is in the
best interests of the Company and its stockholders.
The Rights Agreement contains a limited exception for an inadvertent
triggering of the Rights by a third party who has acquired 20% or more of the
Company's outstanding Common Stock solely for investment purposes but has no
intention of changing or influencing control of the Company. If the Board makes
a good faith determination that such person has become an Acquiring Person
inadvertently, this exception permits such person to divest itself of a
sufficient number of shares as promptly as practicable so that such person will
no longer be deemed an Acquiring Person.
The inadvertent trigger exception also provides that the Company's
repurchase and reduction of the number of common shares outstanding that raises
the proportion of shares of Common Stock beneficially owned by a person as well
as its Affiliates and Associates to more than 20% but less than 25% or more will
not cause such person to become an Acquiring Person or require such person to
divest itself of any shares and will not trigger the Rights. However, in the
event such person thereafter acquires any additional shares resulting in
beneficial ownership of 20% or more of the Common Stock then outstanding, such
person will trigger the Rights and become an Acquiring Person. Furthermore, if
the Company's acquisition of Common Shares causes a Person to beneficially own
25% or more of the then outstanding Common Stock, such Person must divest itself
as promptly as practicable of a sufficient number of shares to own less than 25%
of the outstanding Common Stock to avoid becoming an Acquiring Person. Such
Person will also be subject to prohibitions upon the acquisition of additional
Common Shares resulting in beneficial ownership of 20% or more of the
outstanding Common Stock.
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
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Item 2. Exhibits
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11. Seventh Amendment dated as of July 13, 1998, to the
Rights Agreement between Polaroid Corporation and
BankBoston, N.A., as successor Rights Agent.
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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 amendment to be signed
on its behalf by the undersigned, thereunto duly authorized.
POLAROID CORPORATION
By: /s/ Thomas M. Lemberg
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Name: Thomas M. Lemberg
Title: Senior Vice President,
General Counsel and
Secretary
July 13, 1998
SEVENTH AMENDMENT dated as of July 13, 1998
(the "Amendment"), to the RIGHTS AGREEMENT
dated as of September 9, 1986, as amended as
of August 16, 1988, September 14, 1988,
January 30, 1989, February 20, 1989, October
7, 1991, March 23, 1993, and June 30, 1993
(as so amended, the "Rights Agreement"),
between POLAROID CORPORATION, a Delaware
corporation (the "Company"), and BANKBOSTON,
N.A., as successor rights agent (the "Rights
Agent").
WHEREAS, Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent deem it desirable to amend and supplement the
Rights Agreement as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto hereby agree that the
Rights Agreement is amended as follows:
1. Section 1(a) of the Rights Agreement, as previously amended in the Third
Amendment dated January 30, 1989, shall be supplemented and amended to insert
the following at the conclusion of such Section:
"Notwithstanding the foregoing or anything to the contrary contained
elsewhere in this Rights Agreement, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be
an "Acquiring Person" has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially
owned a percentage of Common Shares that would otherwise cause such
Person to be an "Acquiring Person" or (ii) such Person was aware of the
extent of its Beneficial Ownership of Common Shares but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Rights Agreement) and without any intention of changing or influencing
control of the Company, and such Person, as promptly as practicable
divested or divests himself or itself of Beneficial Ownership of a
sufficient number of Common Shares so that such Person would no longer
be an Acquiring Person, then such Person shall not be deemed to be or
to have become an "Acquiring Person" for any purposes of this Rights
Agreement. In addition to the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by
the Company which, by reducing the number of Common Shares outstanding,
increases the proportionate number of Common Shares beneficially owned
by such Person to 20% or more of the Common Shares then outstanding.
Notwithstanding the immediately preceding
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sentence, (a) if a Person shall become the Beneficial Owner of 20% or
more but less than 25% or more of the Common Shares then outstanding by
reason of such share acquisitions by the Company, such Person shall be
deemed to be an "Acquiring Person" if such Person thereafter becomes
the Beneficial Owner of any additional Common Shares unless upon the
consummation of the acquisition of such additional Common Shares such
Person does not own 20% or more of the Common Shares then outstanding
and (b) a Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate number
of Common Shares beneficially owned by such Person to 25% or more of
the Common Shares then outstanding unless such Person, as promptly as
practicable divested or divests himself or itself of Beneficial
Ownership of a sufficient number of Common Shares so that such Person
would no longer be the Beneficial Owner of 25% or more of the Common
Shares then outstanding, subject to the limitations regarding the
acquisition of additional Common Shares by such Person set forth in
clause (a) of this sentence. The phrase "then outstanding", when used
with reference to a Person's Beneficial Ownership of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
own beneficially hereunder."
2. The Company and BankBoston, N.A. hereby agree and confirm that BankBoston,
N.A. has been appointed the successor Rights Agent under the Rights Agreement.
Section 22 of the Rights Agreement is hereby amended to specifically provide
that the 30 day notice and notice in writing to the registered holders of the
Right Certificates provided for by Section 22 upon the substitution of Rights
Agent shall not apply to the foregoing appointment.
3. Section 2 of the Rights Agreement is hereby amended to read in its entirety
as follows:
"Appointment of Rights Agent. The Company hereby appoints the Rights
Agent to act as agent for the Company and the holders of the Rights
(who prior to the Distribution Date shall also be the holders of the
Common Shares) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may from
time to time appoint one or more co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days' prior written notice to
the Rights Agent (the term "Rights Agent" being used herein to refer,
collectively, to the Rights Agent together with any such co-Rights
Agents); provided, however, the Rights Agent shall have no duty to
supervise, and shall in no event be liable, for the acts or omissions
of any such co-Rights Agent. In the event the
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3
Company appoints one or more co-Rights Agents, the respective duties
of the Rights Agent and any co-Rights Agents shall be as the Company
shall determine.
4. Section 19(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and from time
to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the administration
and execution of this Rights Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense incurred without gross negligence, bad
faith or wilful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Rights Agreement, including the
costs and expenses of defending against any claim of liability arising
therefrom, directly or indirectly.
5. Section 21(c) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or wilful misconduct.
6. Section 26 is hereby amended to provide that any notice or demand authorized
by the Rights Agreement to be given or made to or on the Rights Agent shall be
addressed as follows:
BankBoston, N.A.
c/o Boston EquiServe Limited Partnership
150 Royall Street
Canton, MA 02021
ATTENTION: Client Administration
7. This Amendment shall be effective as of the date hereof. Except as expressly
set forth herein, nothing herein shall be deemed or construed to alter or amend
the Rights Agreement in any respect, and, except as amended and supplemented
hereby, the Rights Agreement shall remain in full force and effect in accordance
with the provisions thereof. Unless the context indicates otherwise, each
reference in the Rights Agreement to "this Rights Agreement" and the words
"hereof", "hereto" and words of similar import shall means the Rights Agreement,
as amended and supplemented hereby.
4. This Seventh Amendment may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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5. This Seventh Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the date and year first
above written.
POLAROID CORPORATION,
by /s/ Thomas M. Lemberg
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Name: Thomas M. Lemberg
Title: Senior Vice President,
General Counsel and
Secretary
Attest:
/s/ Janice E. Neville
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Name: Janice E. Neville
BANKBOSTON, N.A.
by /s/ Katherine Anderson
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Name: Katherine Anderson
Title: Director of Client Services
Attest:
/s/ Tyler Haynes
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Name: Tyler Haynes
Title: Director of Client Services
