<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED):
AUGUST 21, 1995
TUSCARORA INCORPORATED
------------------------------------------------------
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 0-17051 25-1119372
- ---------------------------- ------------ --------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
800 FIFTH AVENUE, NEW BRIGHTON, PENNSYLVANIA 15066
-------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (412) 843-8200
--------------
<PAGE> 2
Item 5. Other Events.
------------
Attached as Exhibit 99 is a description of the registrant's
Common Stock, without par value, containing the information required by Item
202 of Regulation S-K. This description updates and replaces the description
of the registrant's Common Stock contained in the registrant's current report
on Form 8-K dated August 26, 1991 and filed September 4, 1991.
Item 7. Financial Statements, Pro Forma Financial Information
-----------------------------------------------------
and Exhibits.
------------
(c) Exhibits
--------
The following exhibit is filed as a part of this current
report:
<TABLE>
<CAPTION>
Exhibit No. Document
- ----------- --------
<S> <C>
99 Description of Common Stock, without par value, of
Tuscarora Incorporated
</TABLE>
SIGNATURES
----------
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.
TUSCARORA INCORPORATED
(Registrant)
By /s/ BRIAN C. MULLINS
----------------------
Brian C. Mullins
Vice President and Treasurer
Date: August 21, 1995
-2-
<PAGE> 3
TUSCARORA INCORPORATED
FORM 8-K
Date of Report: August 21, 1995
Exhibit Index
-------------
The exhibit listed below is filed with this current report on
Form 8-K.
<TABLE>
<CAPTION>
Exhibit
No. Document
- ------- ------------------------------------
<S> <C>
99 Description of Common Stock, without
par value, of Tuscarora Incorporated
</TABLE>
-3-
<PAGE> 1
Exhibit 99
----------
DESCRIPTION OF COMMON STOCK
The Articles of Incorporation of Tuscarora Incorporated (the
"Company") authorize the issuance of 20,000,000 shares of Common Stock, without
par value, and 1,000,000 shares of Preferred Stock, par value $.01 per share.
No shares of Preferred Stock have been issued.
VOTING RIGHTS
General. The holders of Common Stock are entitled to one vote for
each share held of record on all matters submitted to a shareholder vote.
Holders of Common Stock do not have cumulative voting rights in the election of
Directors.
Directors. The Articles provide that the Board of Directors shall
consist of such number of Directors as may be fixed from time to time by the
affirmative vote of a majority of the Disinterested Directors (defined below)
then in office, plus such number of additional Directors, if any, as the
holders of Preferred Stock shall have the right from time to time to elect.
The Articles further provide that the Board of Directors, excluding any
Directors elected by the holders of Preferred Stock, shall be divided into
three classes, as nearly equal in number as possible. One class of Directors
is elected at each annual meeting of shareholders, to hold office until the
third succeeding annual meeting and until their successors are elected and
qualify.
The shareholders may remove a Director from office only for cause and
only if, in addition to any affirmative vote otherwise required, the holders of
at least a majority of the voting power of the then outstanding shares of
Voting Stock (defined below) which are not beneficially owned by an Interested
Shareholder (defined below) shall vote in favor of such removal.
The Articles provide that vacancies in the members of the Board of
Directors elected by holders of Voting Stock, including vacancies resulting
from an increase in the number of Directors, shall be filled only by the
affirmative vote of a majority of the Disinterested Directors then in office,
though less than a quorum, except as otherwise required by law. Directors
elected to fill vacancies hold office for a term expiring at the annual meeting
of shareholders at which the term of the class to which they have been elected
expires.
The provisions of the Articles with respect to election of Directors
described above do not apply to any Directors elected pursuant to any special
voting rights granted to holders of Preferred Stock.
<PAGE> 2
Business Combinations. The Articles provide that, in addition to any
affirmative vote otherwise required, the affirmative votes of (i) the holders of
at least 75% of the voting power of all then outstanding shares of Voting Stock,
voting together as a single class and (ii) the holders of at least a majority of
the voting power of the then outstanding shares of Voting Stock which are not
beneficially owned by the Interested Shareholder, voting together as a single
class, are required for the approval or authorization of any Business
Combination (defined below), except a Business Combination approved by the
affirmative vote of a majority of the Disinterested Directors then in office.
In the event the requisite approval of the Disinterested Directors would be
given with respect to a particular Business Combination, the normal requirements
of Pennsylvania law would apply to such Business Combination, which means that
shareholder approval might not be necessary or that only a majority of the votes
cast at a duly organized shareholders' meeting would be required.
An "Interested Shareholder" at any particular time generally means any
person which (i) is at such time the beneficial owner, directly or indirectly,
of more than 20% of the voting power of the outstanding Voting Stock; (ii) is
at such time a Director or affiliate of the Company and at any time within the
two-year period immediately prior to such time was the beneficial owner,
directly or indirectly, of more than 20% of the voting power of the then
outstanding Voting Stock; or (iii) is at such time an assignee of or has
otherwise succeeded to the beneficial ownership of any shares of Voting Stock
which were at any time within the two-year period immediately prior to such
time beneficially owned by an Interested Shareholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the 1933
Act. A person is deemed to be the "beneficial owner" of any shares which such
person or any of its "affiliates" or "associates" (as defined in the Articles)
owns directly or indirectly or has the right to acquire or vote, or which are
owned by any other person with which such person or an affiliate or an
associate has an understanding with respect to acquiring, holding, voting or
disposing of Voting Stock.
A "Business Combination" includes the following transactions: (i) a
merger, consolidation or share exchange of the Company or a subsidiary with an
Interested Shareholder (or an affiliate or associate of an Interested
Shareholder); (ii) any sale, lease, exchange, loan, pledge, investment or other
disposition or arrangement involving assets, securities or commitments of the
Company or a subsidiary having a value and/or involving commitments equal to 5%
or more of the Company's consolidated total assets to, with or for the benefit
of an Interested Shareholder (or an affiliate or associate of an Interested
Shareholder); (iii) the issuance or transfer of securities of the Company or a
subsidiary to an Interested Shareholder (or an affiliate or associate of an
Interested Shareholder) in exchange for cash, securities or other consideration
having a value equal to 5% or more of the Company's consolidated total assets;
(iv) the adoption of any plan for the
-2-
<PAGE> 3
liquidation of the Company proposed by or on behalf of an Interested
Shareholder (or an affiliate or associate of an Interested Shareholder); (v)
any reclassification of securities, recapitalization of the Company, merger or
consolidation of the Company with a subsidiary or other transaction which
increases the percentage of any class of stock of the Company or a subsidiary
owned by an Interested Shareholder (or an affiliate or associate of an
Interested Shareholder); or (vi) any other transaction, agreement or
arrangement similar in purpose or effect to the foregoing.
The term "Disinterested Director" means generally a Director of the
Company who is not an Interested Shareholder or an affiliate, associate or
representative of an Interested Shareholder and either (i) was a Director of
the Company immediately prior to the time the Interested Shareholder became an
Interested Shareholder or (ii) is a successor to a Disinterested Director and
is or was recommended or elected to succeed a Disinterested Director by a
majority of the Disinterested Directors then in office.
The term "Voting Stock" means the capital stock of the Company
entitled to vote generally in an annual election of Directors of the Company.
At present, the Common Stock is the Company's only class or series of Voting
Stock.
Amendments to the Articles or By-Laws. The Articles provide that, in
addition to any affirmative vote otherwise required, any amendment or repeal of
any provision of the Articles, or the adoption of any provision inconsistent
therewith, shall require the affirmative votes of (i) the holders of at least
75% of the voting power of all then outstanding shares of Voting Stock, voting
together as a single class, and (ii) the holders of at least a majority of the
voting power of the then outstanding shares of Voting Stock which are not
beneficially owned by any Interested Shareholder, voting together as a single
class, unless such action is recommended by the affirmative vote of a majority
of the Disinterested Directors then in office.
The Articles provide that the Board of Directors may adopt, amend or
repeal the By-Laws with respect to those matters which are not, by statute,
reserved exclusively to the shareholders, provided that such power may be
exercised only by vote of a majority of the Disinterested Directors then in
office. No By-Law may be adopted, amended or repealed by the shareholders
unless, in addition to any affirmative vote otherwise required, such action is
approved by the affirmative votes of (i) the holders of at least 75% of the
voting power of all then outstanding shares of Voting Stock, voting together as
a single class, and (ii) the holders of at least a majority of the voting power
of the then outstanding shares of Voting Stock which are not beneficially owned
by any Interested Shareholder, voting together as a single class, unless such
action is recommended by the affirmative vote of a majority of the
Disinterested Directors then in office.
-3-
<PAGE> 4
In the event the affirmative vote of a majority of the Disinterested
Directors then in office would be obtained with respect to an amendment or
repeal of any provision of the Articles, or the adoption of any provision
inconsistent therewith, or with respect to the adoption, amendment or repeal of
any By-Law, only authorization by a majority of the votes cast at a duly
organized shareholders' meeting would be required for any such amendment,
repeal or adoption.
DIVIDEND AND LIQUIDATION RIGHTS
Dividends may be declared by the Board of Directors and paid on the
Company's Common Stock out of funds legally available therefor in accordance
with the provisions of the Pennsylvania Business Corporation Law of 1988;
subject, however, to the rights of the holders of any Preferred Stock.
The credit agreement between the Company and its principal bank
contains various covenants which require the maintenance of financial ratios
and impose restrictions on capital expenditures, indebtedness and disposition
of capital assets. The amount of retained earnings which could be used by the
Company at each fiscal year end to pay cash dividends without causing a
violation of any of the covenants is included in the notes to the financial
statements included in each Annual Report to Shareholders.
In the event of the liquidation of the Company, the holders of the
Common Stock would be entitled to share ratably in the net assets of the
Company available for distribution after satisfaction of the rights of the
holders of any Preferred Stock.
PREFERRED STOCK
The Articles provide the Board of Directors with authority to issue
the Preferred Stock from time to time, in one or more series, and by resolution
to fix the designations, voting rights, preferences, privileges,
qualifications, limitations, options, conversion rights, restrictions and other
special or relative rights of the Preferred Stock or of each such series,
including variations between different series in the following respects (i) the
distinctive designation of each series and the number of shares that will
constitute such series, (ii) the annual dividend rate for such series and the
dates in each year on which dividends on such series shall be payable and from
which such dividends shall accrue, (iii) the price at which, and the terms and
conditions on which, the shares of such series may be redeemable, (iv) the
purchase or sinking fund provisions, if any, for the purchase or redemption of
shares of such series, (v) the preferential amount payable upon each share of
such series in the event of the liquidation, dissolution or winding up of the
Company, (vi) the voting rights, if any, of the holders of shares of such
series, (vii) the terms and conditions, if any, upon which shares of such
series may be converted into shares of other classes or series of the Company
or other securities and
-4-
<PAGE> 5
(viii) the relative rights of priority of such series as to dividends and
assets with respect to any other classes or series of stock.
The Board of Directors, without shareholder approval, can issue
Preferred Stock with voting and conversion rights which could adversely affect
the voting power of the holders of the Company's Common Stock.
PENNSYLVANIA BUSINESS CORPORATION LAW OF 1988
Transactions With Interested Shareholders. Section 2538 of the
Pennsylvania Business Corporation Law of 1988 (the "BCL") provides that any
merger or consolidation or share exchange of a Pennsylvania business
corporation or a subsidiary with or into, or sale, lease or exchange of all or
substantially all the property of a Pennsylvania business corporation or a
subsidiary to, a shareholder of the corporation or the liquidation and
dissolution of a Pennsylvania business corporation in which a shareholder is
treated differently from other shareholders of the same class requires the
affirmative vote of the shareholders entitled to cast at least a majority of
the votes which all shareholders other than the interested shareholder are
entitled to cast, without counting the vote of the interested shareholder and
certain related parties. The shareholder approval is not, however, required in
the case of any transaction (i) which has been approved by a majority of the
directors other than directors who are directors or officers of, or have a
material equity interest in, the interested shareholder or were nominated for
election as a director by the interested shareholder, and first elected, within
24 months of the date of the vote on the proposed transaction, (ii) in which
the consideration to be received by the shareholders for shares of any class of
which shares are owned by the interested shareholder is not less than the
highest amount paid by the interested shareholder in acquiring shares of the
same class or (iii) which is a short-form merger of a subsidiary into its
parent pursuant to Section 1924(b)(1)(ii) of the BCL.
Any shareholder approval required by Section 2538 is in addition to,
and not in lieu of, any other shareholder approval required by the BCL, the
Company's Articles or By-Laws or otherwise.
Shareholder Rights Plans. Sections 1525 and 2513 of the BCL expressly
authorize the creation and issuance of shareholder rights plans under which
rights or options may be issued to shareholders of a publicly held Pennsylvania
business corporation under terms that would make it disadvantageous for a
person to acquire the corporation while the rights are outstanding.
Special Appraisal Proceeding After Certain Control Transactions.
Sections 2541 through 2548, which comprise Subchapter E of Chapter 25 of the
BCL, provide, with certain exceptions, that in the event any person or group
acting in concert acquires 20% or more of the voting power of the outstanding
voting shares of a publicly-held Pennsylvania business
-5-
<PAGE> 6
corporation, any other holder of voting shares of the corporation may demand
that such person or group purchase the shareholder's shares for cash at a price
determined in a special appraisal proceeding provided for by Subchapter E.
Voting shares for purposes of Subchapter E of Chapter 25 of the BCL and
Subchapters F through J of Chapter 25 of the BCL (see below) are shares of a
corporation entitled to vote generally in the election of directors.
Business Combination Provision. Sections 2551 through 2556, which
comprise Subchapter F of Chapter 25 of the BCL, provide that a person (an
"Interested Shareholder") that acquires 20% or more of the voting power of the
voting shares of a publicly-held Pennsylvania business corporation, other than
the corporation itself or a subsidiary, may not engage in certain Business
Combinations (as defined) with or involving the corporation or a subsidiary for
a period of five years from the date the person becomes an Interested
Shareholder unless (i) the corporation's Board of Directors approves the
Business Combination before the Interested Shareholder's share acquisition date
(the date a person first becomes an Interested Shareholder) or approved the
purchase of shares by the Interested Shareholder prior to the Interested
Shareholder's share acquisition date, (ii) the Interested Shareholder acquires
80% or more of the voting power of the corporation's voting shares and
thereafter (no earlier than three months after the Interested Shareholder
became an 80% holder) the Business Combination is approved by the holders of a
majority of the voting power of the corporation's voting shares not held by the
Interested Shareholder or any of the affiliates or associates and certain fair
price provisions contained in Section 2556 are satisfied or (iii) the Business
Combination is approved by the affirmative vote of the holders of all the
outstanding common shares.
The Business Combinations covered by Subchapter F are very similar to
the Business Combinations which may require special shareholder votes as
discussed above under "Description of Common Stock--Voting Rights". Under the
fair price provisions contained in Section 2556, regardless of whether the
particular Business Combination which may be subject to shareholder approval
involves the purchase or acquisition of shares from shareholders other than the
Interested Shareholder, all holders of common shares have the right to receive
a consideration at least equal to the higher of (i) the higher of the market
value per common share on the announcement date of the Business Combination or
on the share acquisition date of the Interested Shareholder (in either case
with market value being the highest closing sale price during the immediately
preceding 30-day period) or (ii) the highest per share price paid by the
Interested Shareholder at any time when the Interested Shareholder was a 5%
holder within the five-year period immediately prior to such announcement date
or the five-year period immediately prior to, or in, the transaction in which
the Interested Shareholder became an Interested Shareholder. Interest on the
consideration from certain earlier dates, less dividends
-6-
<PAGE> 7
received since such dates, is also provided for; the form of the consideration
is required to be either all cash or the same form of consideration used by the
Interested Shareholder to acquire the largest number of shares previously
acquired by it; the consideration is required to be promptly paid; and there
are similar provisions applicable to holders of preferred shares. The fair
price provisions are also not satisfied unless, between the time an Interested
Shareholder becomes such and the consummation date of the Business Combination,
the Interested Shareholder shall not have become the owner of any additional
shares except by virtue of splits or dividends or at one or more other fair
prices also prescribed by Section 2556.
If none of the exemptions from the application of Subchapter F as set
forth in the second preceding paragraph is applicable, no Interested
Shareholder may engage in a Business Combination with or involving the
corporation or a subsidiary until five years after the share acquisition date
of the Interested Shareholder. After the five years' have elapsed, a Business
Combination with or involving the Interested Shareholder may be consummated (i)
upon being authorized by the affirmative vote of the holders of a majority of
the voting power of the corporation's voting shares, not including any shares
owned by the Interested Shareholder or any of its affiliates or associates (in
which case the fair price provisions of Section 2556 would not be applicable)
or (ii) upon being authorized by a majority of the votes cast at a duly
organized shareholders' meeting (in which case the fair price provisions of
Section 2556 would be applicable).
Control Share Acquisition Provision. Sections 2561 through 2568,
which comprise Subchapter G of Chapter 25 of the BCL, provide that a person (an
"acquiring person") who makes or proposes to make a "control share acquisition"
and acquires shares ("control shares") in a control share acquisition or within
180 days of or with the intention of making a control share acquisition will
have no voting rights with respect to the control shares unless the
shareholders of the corporation vote to accord voting rights to the control
shares either before or after the control shares are acquired. Both the
affirmative vote of the holders of a majority of all "disinterested shares" (as
defined) and the affirmative vote of the holders of a majority of all voting
shares is required, and the corporation is not required to submit the voting
rights issue to its shareholders unless certain information is submitted to the
corporation and, if the control share acquisition has not occurred, the
acquiring person has entered into definitive financing agreements with
responsible parties sufficient to consummate the control share acquisition. A
"control share acquisition" is an acquisition by the acquiring person of voting
power which, with certain exceptions, when added to prior voting power of the
acquiring person will entitle the acquiring person to cast or direct the
casting of for the first time a percentage of votes within any of the following
ranges of
-7-
<PAGE> 8
voting power: at least 20% but less than 33-1/3%, or at least 33-1/3% but less
than 50%, or 50% or more of the votes all shareholders would be entitled to
cast in an election of directors. A corporation may redeem all control shares
of an acquiring person at the then current market price within 24 months after
a control share acquisition if the acquiring person does not within 30 days
after consummation of the control share acquisition request that the issue of
voting rights be presented to the shareholders or within 24 months after the
shareholders refuse to accord voting rights to the control shares.
Disgorgement of Profit Provision. Sections 2571 through 2576, which
comprise Subchapter H of Chapter 25 of the BCL, provide, with certain
exceptions, that any profit realized by a "controlling person or group" from
the disposition of equity securities of a corporation to any person, including
the corporation, may be recovered by the corporation if the equity securities
are disposed of within 18 months after the person or group became a
"controlling person or group" and were acquired within 24 months prior to or 18
months after the person or group became a "controlling person or group". A
"controlling person or group" is, with certain exceptions, a person or group
which has acquired, offered to acquire or publicly disclosed the intention of
acquiring voting power over voting shares of a corporation that would entitle
the holder thereof to cast at least 20% of the votes that all shareholders
would be entitled to cast in an election of directors, or a person or group
which has otherwise publicly disclosed that it may seek to acquire control of a
corporation through any means.
Severance Compensation Provision. Sections 2581 through 2583, which
comprise Subchapter I of Chapter 25 of the BCL, provide for severance payments
for certain Pennsylvania employees, whose employment is terminated within 90
days before or 24 months after a "control share approval". A "control share
approval" is deemed to have occurred, among other events, if both a control
share acquisition and the according of voting rights to control shares have
occurred under Subchapter G.
Labor Contract Continuation Provision. Sections 2585 through 2588,
which comprise Subchapter J of Chapter 25 of the BCL, provide that no merger or
consolidation or sale or other disposition of all or substantially all the
assets of a business operation located in Pennsylvania owned by a corporation
at the time of a control share approval (as defined in Subchapter I), or any
transfer of a controlling interest in such a business operation, within five
years after the control share approval may result in the termination or
impairment of the provisions of certain labor contracts covering Pennsylvania
employees.
Fiduciary Obligation of Directors. Section 1715(a) of the BCL
provides that in determining whether any action is in the best interests of the
corporation, the directors may consider, as they deem appropriate, the effects
of any such action on all affected
-8-
<PAGE> 9
groups, including shareholders, employees, suppliers, customers, creditors and
communities. It also explicitly permits directors to consider whether the
interests of the corporation in a possible change-of-control situation would be
best served by the corporation's continued independence. Section 1715(b)
specifically provides that the directors are not required, in considering the
best interests of the corporation or the effects of any action, to regard any
corporate interest or the interests of any particular group affected by such
action as a dominant or controlling interest or factor.
Just Say No Provision. Under Section 1502(a)(18) of the BCL, every
business corporation has the power to accept, reject, respond to or take no
action in respect of an actual or proposed acquisition, divestiture, tender
offer, takeover or other fundamental change under Chapter 19 of the BCL or
otherwise.
POSSIBLE ANTI-TAKEOVER EFFECT
Certain of the provisions of the Company's Articles and the provisions
of the BCL described above may be considered as having an anti-takeover
effect. For instance, since the Directors and officers of the Company
beneficially own more than 20% of the Company's outstanding Common Stock, it
could be difficult under these provisions for any person to remove directors,
to obtain approval for any Business Combination, to have voting rights accorded
to control shares acquired or to be acquired in a control share acquisition or
to amend the Company's Articles or By-Laws without their approval. In
addition, under certain circumstances, the Board of Directors could cause
additional shares of Common Stock or shares of Preferred Stock to be issued or
cause rights to purchase Common Stock or Preferred Stock to be issued to create
voting impediments or to frustrate persons seeking to effect a takeover or gain
control of the Company. The additional shares of Common Stock, shares of
Preferred Stock or rights could be issued without any additional action by
shareholders. Shares could be privately placed with purchasers who might join
with the Board in opposing a hostile takeover bid or could be sold with or
without an option or requirement on the part of the Company to repurchase the
shares. The Board could also authorize holders of the Preferred Stock to vote
as a class either separately or with the holders of Common Stock on any merger,
sale or exchange of assets by the Company or any other extraordinary corporate
transaction.
MISCELLANEOUS
Holders of the Common Stock have no preemptive or other rights to
subscribe for any securities of the Company and there are no sinking fund
provisions, conversion rights or redemption provisions applicable to the Common
Stock.
The Transfer Agent and Registrar for the Company's Common Stock is
Mellon Bank, N.A., Pittsburgh, Pennsylvania.
-9-
