SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT*
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DATE OF REPORT (Date of earliest event reported):
SEPTEMBER 21, 1998
HARNISCHFEGER INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-9929 39-1566457
(State or Other (Commission File (IRS Employer
Jurisdiction Number) Identification
of Incorporation) No.)
3600 SOUTH LAKE DRIVE, ST. FRANCIS, WISCONSIN 53235-3716
(Address of Principal Executive Offices) (ZipCode)
Registrant's telephone number, including area code:(414)486-6400
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*This report updates and supersedes the description of the
Registrant's Common Stock in the Registrant's Registration Statement on
Form8-B filed on October 20, 1986, as previously updated by the
Registrant's Form 8-K dated March 25, 1992. See Item 5 herein.
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Item 5. Other Events.
The following "Description of Capital Stock" is filed for the
purpose of updating and superseding the description of the Common
Stock of Harnischfeger Industries, Inc. (the "Company") contained in the
Company's Registration Statement on Form 8-B filed on October 20,
1986, as previously updated by the Company's Form 8-K dated March 25,
1992:
DESCRIPTION OF CAPITAL STOCK
(The following summary does not purport to be a complete
description of the applicable provisions of the Company's Restated
Certificate of Incorporation (the "Certificate of Incorporation") and
Bylaws (the "Bylaws"), as they may be amended from time to time, or of
applicable statutory or other law, and is qualified in its entirety by
reference thereto.)
Pursuant to the Certificate of Incorporation, as in effect on the date
hereof, the Company has (i) 150,000,000 authorized shares of Common
Stock, par value $1 per share (the "Common Stock"), and (ii) 250,000 authorized
shares of Preferred Stock, par value $100 per share (the "Preferred Stock").
A Right (as defined below) currently attaches to each share of Common Stock
outstanding.
Common Stock
Dividend Rights and Restrictions. The holders of Common Stock
are entitled to receive dividends when and as declared by the Board of
Directors out of funds legally available therefor. The Company's dividend
policy is subject to change at any time at the discretion of the Board of
Directors. Covenants contained in the Company's debt agreements from
time to time may impose certain restrictions regarding the payment of
dividends.
Voting Rights. The holders of Common Stock are entitled to one
vote per share on each matter submitted to a vote at any meeting of
stockholders. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders, unless the vote of a greater
number or voting by classes is required by Delaware law, the Certificate of
Incorporation, or the Bylaws. Under the Certificate of Incorporation,
certain corporate actions, including the sale of all or substantially all of the
Company's property and assets, a merger or consolidation with one or
more other corporations (except a merger in which the Company is to be
the surviving corporation and for which the Delaware General Corporation
Law does not require a stockholder vote), voluntary dissolution of the
Company and amendments to the Certificate of Incorporation, require the
affirmative vote of the holders of at least two-thirds of the combined
voting power of the then outstanding shares of stock of the Company
entitled to vote thereon, voting together as a single class.
Holders of Common Stock do not have cumulative voting rights.
Accordingly, the holders of a simple majority of the shares voting at a
meeting for the election of directors can elect all of the directors being
elected at such meeting (and the holders of the remaining shares will be
unable to elect any directors). The Certificate of Incorporation provides
for three classes of directors, each of which is to be elected on a staggered
basis for a term of three years.
Liquidation Rights. In the event of a liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to
share ratably in all of the assets of the Company available for distribution
to its stockholders, subject to the preferential rights of the holders of any
Preferred Stock that may then be outstanding.
Assessability. When the Company has received the consideration
determined by the Board of Directors to be paid for the issuance of shares
of Common Stock, such shares are fully paid and non-assessable, except
that, under the Wisconsin Business Corporation Law, as interpreted by the
Supreme Court of Wisconsin, the stockholders of the Company, as
stockholders of a corporation which is qualified to do business and has its
principal place of business in Wisconsin, may in certain circumstances be
personally liable for debts owing to employees of the Company for
services performed for the Company, but not exceeding six months service
in any one case.
Other Matters. Holders of Common Stock, as such, do not have
preemptive rights to purchase or subscribe for unissued stock or other
securities of the Company. The shares of Common Stock are not subject
or entitled to the operation of a retirement or sinking fund. The shares of
Common Stock are not convertible into shares of Preferred Stock or into
shares of any other class or series of capital stock of the Company. The
Common Stock is listed on the New York and Pacific Stock Exchanges.
BankBoston, N.A. is the transfer agent and registrar for
the Common Stock.
Certain Provisions of the Delaware General Corporation Law
The Company is governed by the provisions of Section 203 of the
Delaware General Corporation Law. In general, the law prohibits a public
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the time the
person became an interested stockholder, unless the business combination
is approved in a prescribed manner. "Business combination" includes
mergers, asset sales and other transactions resulting in a financial benefit to
the interested stockholder. An "interested stockholder" is a person who,
together with affiliates and associates, owns (or, if currently an affiliate or
associate of the corporation, within three years did own) 15% or more of
the corporation's voting stock.
Preferred Stock
Preferred Stock may be issued from time to time in series having
such designations, preferences and rights, and qualifications, limitations
and restrictions as the Board of Directors may determine, including the
consideration to be received therefor, the number of shares comprising
each series, dividend rates, redemption provisions, liquidation preferences,
mandatory retirement provisions, conversion rights and voting rights, all
without any stockholder approval. Preferred Stock could be given voting
and conversion rights which would dilute the voting power and equity of
holders of Common Stock and could have preference over Common Stock
with respect to dividends and liquidation rights. The Board of Directors,
without stockholder approval, may issue Preferred Stock with voting or
conversion rights which could adversely affect the voting power of the
holders of Common Stock or which could be used as a defensive measure
in connection with an unsolicited attempt to acquire the Company.
Certain fundamental matters requiring stockholder approval (such as
mergers, a sale of substantially all assets and certain amendments to the
Certificate of Incorporation) may require approval by the separate vote of
the holders of the Common Stock and the Preferred Stock. None of the
Preferred Stock is outstanding as of the date hereof. In connection with
the Preferred Stock Purchase Rights described below, the Board of
Directors has designated 100,000 of the authorized shares of Preferred
Stock as Preferred Stock, Series D, and has reserved 50,000 of such
shares for issuance upon exercise of the Rights.
Preferred Stock Purchase Rights
On February 6, 1989, the Board of Directors declared a
dividend of one preferred share purchase right (a "Right") for each share
of Common Stock payable on February 17, 1989 (the "Record
Date") to stockholders of record at the close of business on the Record
Date, and with respect to all shares of Common Stock that become
outstanding after the Record Date and prior to the earliest of the
Distribution Date (as defined below), the redemption of the Rights and the
expiration of the Rights. Except as set forth below and subject to
adjustment as provided in the Rights Agreement (as defined below), each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of the Corporation's Preferred Stock, Series D,
par value $100 per share (the "Series D Preferred Stock"), at an exercise
price of $75.00 per one one-thousandth of a share (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement
dated as of February 8, 1989, as amended as of October 9, 1995 and September
15, 1998 (the "Rights Agreement"), between the Company and BankBoston, N.A.
(formerly known as The First National Bank of Boston), as Rights Agent
(the "Rights Agent").
The Rights will be evidenced by Common Stock certificates and
not by separate certificates until the close of business on the earlier of (i)
the tenth day after the public disclosure that a person or group (an
"Acquiring Person"), together with persons affiliated or associated with it,
has acquired, or obtained the right to acquire, beneficial ownership of 15%
or more of the outstanding Common Stock (the "Stock Acquisition Date")
and (ii) the tenth business day (or such later date as may be determined by
action of the Board of Directors prior to such time as any person becomes
an Acquiring Person) after the first date of the commencement of, or first
public disclosure of an intention to commence, a tender offer or exchange
offer for securities of the Company by a person other than the Company
and certain related entities if, upon consummation thereof, such person or
group, together with persons affiliated or associated with it, could acquire
beneficial ownership of 15% or more of the outstanding Common Stock
(the earlier of such dates being called the "Distribution Date"). Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
Rights will be transferable with and only with the Common Stock (except
in connection with redemption of the Rights). Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer, replacement or new
issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Stock will also constitute the transfer of the
Rights associated with the Common Stock represented by such
certificates.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date. From and after the Distribution Date, such separate
Rights Certificates alone will evidence the Rights.
The Rights will first become exercisable on the Distribution Date
(unless sooner redeemed). The Rights will expire at the close of business
on February 17, 2009 (the "Expiration Date"), unless earlier redeemed by
the Company as described below.
The Purchase Price and the number of shares of Series D Preferred
Stock or other securities, cash or other 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 or distribution on, or a
subdivision, combination or reclassification of, the Series D Preferred
Stock, (ii) upon the grant to holders of the Series D Preferred Stock
of certain rights, options, or warrants to subscribe for Series D
Preferred Stock or securities convertible into Series D Preferred Stock
at less than the current market price of the Series D Preferred Stock,
or (iii) upon the distribution to holders of the Series D Preferred Stock
of other securities, cash (excluding regular periodic cash dividends at
an annual rate not in excess of 125% of the annualized rate of cash
dividends paid during the then preceding fiscal year), property,
evidences of indebtedness, or assets.
In the event that, following the Distribution Date, the Company is
acquired in a merger or other business combination in which the Common
Stock does not remain outstanding or is changed or 50% or more of its
consolidated assets or earning power is sold, leased, exchanged,
mortgaged, pledged or otherwise transferred or disposed of (in one
transaction or a series of related transactions), then the Rights will
"flip-over" and entitle each holder of a Right to purchase, upon the
exercise of the Right at the then-current Purchase Price, that number of
shares of common stock of the acquiring company (or, in certain
circumstances, one of its affiliates) which at the time of such transaction
would have a market value of two times such Purchase Price.
In the event that any person becomes an Acquiring Person (a
"Triggering Event"), the Rights will "flip-in" and entitle each holder of a
Right, except as provided below, to purchase, upon exercise at the
then-current Purchase Price, that number of shares of Common Stock having a
market value of two times such Purchase Price.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. Holders will have no right to receive fractional
shares of Series D Preferred Stock (other than fractions which are integral
multiples of one one-thousandths of a share of Series D Preferred Stock)
upon the exercise of Rights. In lieu of such fractional shares, an
adjustment in cash may be made based on the market price of the Series D
Preferred Stock on the last trading date prior to the date of exercise,
or the Company may issue scrip, warrants or depositary receipts.
If the Board of Directors determines in good faith that a person
who would otherwise be an Acquiring Person has become such
inadvertently, and such person divests as promptly as practicable a
sufficient number of shares of Common Stock so that such person would
no longer be an Acquiring Person, then such person shall not be deemed
an Acquiring Person.
Any Rights beneficially owned at any time on or after the earlier of
the Distribution Date and the Stock Acquisition Date by an Acquiring
Person or an affiliate or associate of an Acquiring Person (whether or not
such ownership is subsequently transferred) will become null and void
upon the occurrence of a Triggering Event, and any holder of such Rights
will have no right to exercise such Rights.
At any time prior to the earlier of (i) such time as any person
becomes an Acquiring Person, (ii) the effective time of a business
combination with the Company that follows a Stock Acquisition Date and
(iii) the Expiration Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.02 per Right. Immediately upon the action
of the Company's Board of Directors electing to redeem the Rights, the
right to exercise the Rights will terminate and the only right of the holders
of Rights thereafter will be to receive the applicable redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company (other than with respect to stock
of the Company owned by such holder), including, without limitation, the
right to vote or to receive dividends or distributions.
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 will occur); provided, however, that the Rights Agreement
may not be amended to change the Purchase Price, the number of shares of
Series D Preferred Stock, other securities, cash or other property obtainable
upon exercise of a Right, or the redemption price, or to provide for an
earlier Expiration Date. After the Distribution Date, the Rights Agreement
may be amended only to cure ambiguities, to correct inconsistent provisions
or in ways that do not adversely affect the Rights holders.
Each share of Series D Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $50 per share but will be
entitled to an aggregate dividend of 1000 times the dividend declared per
share of Common Stock. In the event of liquidation, the holders of the
Series D Preferred Stock will be entitled to a minimum preferential
liquidation payment of $1000 per share but will be entitled to an
aggregate payment of 1000 times the payment made per share of Common Stock.
Each share of Series D Preferred Stock will have 1000 votes, voting
together with the Common Stock. In the event of any merger, consolidation
or other transaction in which Common Stock is exchanged, each share of
Series D Preferred Stock will be entitled to received 1000 times the
amount received per share of Common Stock. These rights are protected
by customary antidilution provisions.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by the Company's Board of Directors,
except pursuant to an offer conditioned on a substantial number of Rights
being acquired. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors prior to a person
becoming an Acquiring Person or the effective time of such merger or
other business combination, because until any such time the Rights may be
redeemed by the Company at $.02 per Right.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
See Exhibit Index following the Signature page of this report,
which is incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ James C. Benjamin
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James C. Benjamin
Vice President and Controller
Date: September 21, 1998
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EXHIBIT INDEX
Exhibit
No.
99.1 Restated Certificate of Incorporation of Harnischfeger Industries,
Inc. dated as of April 21, 1997 (including the Certificate of
Designations of Preferred Stock, Series D, attached as Exhibit A
thereto) (Incorporated by reference to Exhibit 3(a) to the
Registrant's Form 10-Q for the Quarterly Period ended April 30,
1997)
99.2 Rights Agreement dated as of February 8, 1989 between
Harnischfeger Industries, Inc. and BankBoston, N.A., formerly
known as The First National Bank of Boston, as Rights Agent,
(Incorporated by reference to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A filed on February 9, 1989)
99.3 Amendment, dated as of October 9, 1995, to the Rights
Agreement, dated as of February 8, 1989, between Harnischfeger
Industries, Inc. and The First National Bank of Boston, as Rights
Agent (Incorporated by reference to Exhibit 4 of the registrant's
Current Report on Form 8-K dated October 11, 1995).
99.4 Amendment, dated as of September 15, 1998, to the Rights
Agreement, dated as of February 8, 1989, as amended as of
October 9, 1995, between Harnischfeger Industries, Inc. and
BankBoston, N.A., formerly known as The First National Bank
of Boston, as Rights Agent (Incorporated by reference to
Exhibit 4 of the registrant's Current Report on Form
8-K dated September 15, 1998).
99.5 Bylaws of Harnischfeger Industries, Inc., as amended August 24,
1998 (Incorporated by reference to Exhibit 3 to the Registrant's
Form 10-Q for the Quarterly Period ended July 31, 1998)
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