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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Specialty Equipment Companies, Inc.
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(Exact name of registrant as specified in its charter)
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Delaware 36-3337593
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(State of incorporation or organization) (IRS Employer Identification No.)
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1245 Corporate Boulevard, Suite 401, Aurora, Illinois 60504
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(Address of principal executive offices) (Zip Code)
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If this form relates to If this form relates to
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A. (c), please check the following A. (d), please check the following
box. [X] box. [ ]
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Securities to be registered pursuant to Section 12(b) of the Act:
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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, New York Stock Exchange, Inc.
$.01 par value
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Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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(Title of Class)
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
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COMMON STOCK
The authorized capital stock of Specialty Equipment Companies, Inc.
(the "Company") consists of 25,000,000 shares of common stock, par value $.01
per share ("Common Stock"). As of December 16, 1998, there were 18,383,777
outstanding shares of Common Stock. No other class of capital stock is
authorized by the Company's Amended and Restated Certificate of Incorporation
("Certificate of Incorporation"), and such Certificate of Incorporation
prohibits the issuance of non-voting equity securities by the Company. The
shares of Common stock which are currently outstanding have been duly authorized
and are validly issued and, assuming receipt by the Company of the full and
valid consideration therefor, fully paid and nonassessable.
Each holder of Common Stock is entitled to one vote per share on all
matters submitted to a vote of holders of Common Stock. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company, holders of Common Stock are entitled to share ratably in all
assets available for distribution to stockholders. The Common Stock has no
preemptive or other subscription rights, and there are no conversion rights or
redemption or sinking fund provisions with respect to such shares.
The holders of Common Stock are entitled to receive such dividends, if
any, as may be declared from time to time by the board of directors of the
Company in its discretion from assets legally available therefor. Since its
reorganization in 1992, the Company has not paid a cash dividend on its Common
Stock and has no present intention of paying cash dividends in the foreseeable
future. The Company's current policy is to retain earnings to provide funds for
the operation and expansion of its business and the payment of its indebtedness.
Any determination in the future to pay dividends will depend upon the Company's
financial position, capital requirements, results of operations and other
factors deemed relevant by the board of directors.
The payment of dividends by the Company to holders of the Common Stock
may also be restricted by covenants in the Company's loan agreements or in
indentures relating to debt securities issued by the Company. On December 1,
1998, the Company entered into a credit agreement with certain banks to provide
a $200,000,000 unsecured, five-year revolving credit facility (the "Credit
Agreement"). Under the terms of the Credit Agreement, neither the Company nor
its subsidiaries may declare or make any dividend payment or other distribution
of assets, properties, cash, rights, obligations or securities on account of
any shares of any class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any warrants, rights or
options to acquire such shares, except (a) the Company and any wholly-owned
subsidiary may declare and make dividend payments or other distributions
payable in its common stock; (b) the Company and any wholly-owned
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subsidiary may purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds received
from the substantially concurrent issue of new shares of its common stock; (c)
the Company and any wholly-owned subsidiary may declare or pay cash dividends to
its stockholders, provided that (i) immediately after giving effect to such
proposed action, no Default or Event of Default (as defined in the Credit
Agreement) would exist and (ii) the aggregate amount of such dividends paid
after January 31, 1998 may not exceed 35% of the cumulative Consolidated Net
Income (as defined in the Credit Agreement) arising after January 31, 1998; (d)
the Company may purchase, redeem or otherwise acquire shares of its Common
Stock, provided (i) immediately after giving effect to such acquisition of stock
no Default of Event of Default would exist and (ii) the aggregate consideration
paid for all such acquisitions of stock does not exceed the sum of (x)
$15,000,000, plus (y) 35% of the aggregate positive Consolidated Net Income
arising after January 31, 1998 and computed on a cumulative consolidated basis
and calculated without reduction for any repurchase premiums incurred in
connection with purchases of the Company's Senior Subordinated Notes; and (e)
any subsidiary may pay dividends to the Company or Specialty Equipment
Manufacturing Corporation.
To the extent the Company enters into any additional credit agreements,
such credit agreements may also contain restrictions on the payment of dividends
to the holders of the Company's Common Stock.
Shareholders of Common Stock do not have pre-emptive rights to
subscribe to additional issues, either by charter provisions or by statute.
SECTION 203 OF THE DELAWARE LAW
Since the Company's shares of Common Stock were qualified for trading
on the NASDAQ National Market on December 1, 1993, the Company has been subject
to Section 203 of the Delaware General Corporation Law (the "DGCL"). Subject to
certain exceptions, Section 203 prohibits a publicly-held Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years following the time that such stockholder became an
interested stockholder, unless (i) prior to such time either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder is approved by the board of directors of the corporation,
(ii) upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding (A) those shares owned by persons who are both directors and
officers and (B) certain employee stock plans, or (iii) at or subsequent to such
time the business combination is approved by the board of directors and
authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock which is not owned by the interested stockholder. A "business combination"
includes certain mergers, consolidations, asset sales,
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transfers and other transactions resulting in a financial benefit to the
stockholder. An "interested stockholder" is a person who, together with
affiliates and associates, owns (or within three years, did own) 15% or more of
the corporation's voting stock.
CERTAIN CHARTER AND BY-LAW PROVISIONS
Certain provisions of the Company's Certificate of Incorporation, its
Amended and Restated By-Laws (the "By-Laws") and, if applicable, DGCL Section
203 (discussed above) may have the effect, either alone or in combination with
each other, of making more difficult or discouraging a tender offer or takeover
attempt that is opposed by the board of directors of the Company but that a
stockholder might consider to be in such stockholder's best interests.
The Certificate of Incorporation and By-Laws provide that the board of
directors will consist of nine directors divided into three classes of
directors. Class 1 consists of three directors with a term expiring at the
annual meeting of stockholders in the Company's fiscal year ending January 31,
2002. Class 2 consists of three directors with a term expiring at the annual
meeting of stockholders in the Company's fiscal year ending January 31, 2001.
Class 3 consists of three directors with a term expiring at the annual meeting
of stockholders in the Company's fiscal year ending January 31, 2000. The
classification provision, by staggering the terms of classes of directors, may
have the effect of lengthening the time necessary to effect a change in the
composition of the board of directors and may make the acquisition of control
of the Company by a third party by means of a proxy contest more difficult.
Holders of Common Stock do not have cumulative voting rights in the election of
directors. Accordingly, when voting for directors, holders of a majority of the
shares of Common Stock can elect all of the directors then being elected.
The Company's Certificate of Incorporation and By-Laws also provide
that (i) a director, or the entire board of directors, may be removed by the
stockholders of the Company only for cause and only if such removal is approved
by the affirmative vote of the holders of a majority of the Common Stock, (ii)
no decrease in the number of directors will shorten the term of any incumbent
director and (iii) any provision of the Certificate of Incorporation relating to
the board of directors may only be amended by the affirmative vote of the
holders of at least 80% of all outstanding Common Stock. These provisions
preclude a third party from removing incumbent directors without cause and
simultaneously gaining control of the board of directors by filling the
vacancies created by such removal with its own nominees. These provisions also
reduce the power of stockholders, even those with a majority of the voting
power, to remove incumbent directors.
In addition, the Company's By-Laws provide that special meetings of
stockholders may be called by the board of directors of the Company.
Stockholders are not authorized by the Company's By-Laws to call a special
meeting or to require that the board of directors call a special meeting of
stockholders.
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The Company's Certificate of Incorporation provides that no director
shall be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
acts and omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit. The
effect of these provisions is to eliminate the rights of the Company and its
stockholders (through stockholders' derivative suits on behalf of the Company)
to recover monetary damages against a director for breach of his fiduciary duty
as a director (including breaches resulting from grossly negligent behavior),
except in the situations described above. These provisions do not limit the
liability of directors under federal securities laws and have no effect on
non-monetary remedies that may be available to the Company or its stockholders.
In addition, the Company's By-Laws contain provisions providing for the
indemnification of officers, directors and others under certain circumstances.
* * *
The foregoing description of the Common Stock is necessarily general in
nature and is qualified in its entirety by reference to the exhibits hereto.
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ITEM 2. EXHIBITS.
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1. The Amended and Restated Certificate of Incorporation
of the Company is incorporated herein by reference to
Exhibit 3.1(i) of the Company's Form 8-K, as filed
with the Securities and Exchange Commission on May
12, 1994.
2. The Amended and Restated By-Laws of the Company are
incorporated herein by reference to Exhibit 3.1(ii)
of the Company's Form 8-K, as filed with the
Securities and Exchange Commission on May 12, 1994.
3. The Second Amended and Restated Credit Agreement,
dated as of November 24, 1998, among Specialty
Equipment Companies, Inc., Specialty Equipment
Manufacturing Corporation and Bank of America
National Trust and Savings Association is
incorporated herein by reference to Exhibit 3.1 of
the Company's Quarterly Report on Form 10-Q for the
quarter ended October 31, 1998, as filed with the
Securities and Exchange Commission on December 15,
1998.
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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.
Date: December 23, 1998 SPECIALTY EQUIPMENT COMPANIES, INC.
By: /s/ Jeffrey P. Rhodenbaugh
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Name: Jeffrey P. Rhodenbaugh
Title: Chief Executive Officer
and President
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