SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 2
to Registration Statement on Form 8-A
dated September 30, 1994, relating to
Stock Purchase Rights
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AVONDALE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
LOUISIANA 39-1097012
(State of incorporation (IRS Employer
or organization) Identification Number)
5100 RIVER ROAD
AVONDALE, LOUISIANA 70094
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. ________
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. ________
Securities Act registration statement file number to which this form
relates: N.A.
Securities to be registered pursuant to Section 12(g) of the Act:
STOCK PURCHASE RIGHTS
(Title of Class)
The undersigned registrant hereby amends the following items and exhibits
or other portions of its Registration Statement on Form 8-A as follows:
1. Item 1 is hereby amended, to reflect an amendment to the registrant's
Stockholder Protection Rights Agreement, to read in its entirety as
follows:
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On September 26, 1994, the Board of Directors of Avondale
Industries, Inc., a Louisiana corporation (the "Company"), declared a
dividend payable October 31, 1994 of one right (a "Right") for each
outstanding share of common stock, $1.00 par value ("Common Stock"), of the
Company held of record at the close of business on October 10, 1994 (the
"Record Time"), or issued thereafter and prior to the Separation Time (as
defined below) and thereafter pursuant to options and convertible
securities outstanding at the Separation Time. The Rights will be issued
pursuant to a Stockholder Protection Rights Agreement, dated as of
September 26, 1994 (the "Stockholder Protection Rights Agreement"), between
the Company and Boatmen's Trust Company, as amended by the First Amendment
to Stockholder Protection Rights Agreement dated as of January 19, 1999 and
by the Second Amendment to Stockholder Protection Rights Agreement dated as
of June 3, 1999 between the Company and ChaseMellon Shareholder Services,
LLC (successor to Boatmen's Trust Company), as rights agent (the "Rights
Agent") (the Stockholder Protection Rights Agreement as amended, the
"Rights Agreement"). Each Right entitles its registered holder to purchase
from the Company, after the Separation Time, one one-hundredth of a share
of Participating Preferred Stock, $1.00 par value ("Participating Preferred
Stock"), for $32.00 (the "Exercise Price"), subject to adjustment.
The Rights will be evidenced by the Common Stock certificates until
the Separation Time. The Separation Time is the close of business on the
earlier of (i) the tenth business day (or such later date as the Board of
Directors of the Company may from time to time fix by resolution adopted
prior to the Separation Time that would otherwise have occurred) after the
date on which any Person (as defined in the Rights Agreement) commences a
tender or exchange offer which, if consummated, would result in such
Person's becoming an Acquiring Person (as defined below) and (ii) the tenth
business day after any Stock Acquisition Date (as defined below) that is
not the result of a Flip-over Transaction or Event (as defined below) (the
"Flip-in Date"); PROVIDED that if the foregoing results in the Separation
Time being prior to the Record Time, the Separation Time shall be the
Record Time; and PROVIDED FURTHER that if a tender or exchange offer
referred to in clause (i) is cancelled, terminated or otherwise withdrawn
prior to the Separation Time without the purchase of any shares of stock
pursuant thereto, such offer shall be deemed never to have been made. An
Acquiring Person is any Person having Beneficial Ownership (as defined in
the Rights Agreement) of 15% or more of the outstanding shares of Common
Stock, which term shall not include: (i) the Company's employee stock
ownership trust, the trustees and the administrative committee, but in all
such cases solely in such capacities and solely with respect to current
ownership and specified permitted further acquisitions of shares of Common
Stock; (ii) the Company, any wholly-owned subsidiary of the Company and any
other employee benefit plan of the Company and any wholly-owned subsidiary
of the Company; (iii) any Person who shall become the Beneficial Owner of
15% or more of the outstanding Common Stock solely as a result of an
acquisition of Common Stock by the Company, until such time as such Person
acquires additional Common Stock, other than through a dividend or stock
split; (iv) any Person who becomes an Acquiring Person without any plan or
intent to seek or affect control of the Company if such Person promptly
divests sufficient securities such that such 15% or greater Beneficial
Ownership ceases; or (v) any Person who Beneficially Owns shares of Common
Stock consisting solely of (A) shares acquired pursuant to the grant or
exercise of an option granted by the Company in connection with an
agreement to merge with, or acquire, the Company at a time at which there
is no Acquiring Person, (B) shares owned by such Person and its Affiliates
and Associates at the time of such grant or (C) shares, amounting to less
than 1% of the outstanding Common Stock, acquired by Affiliates and
Associates of such Person after the time of such grant. Notwithstanding
anything to the contrary, the term "Acquiring Person" shall not include
Litton Industries, Inc., a Delaware corporation, or its Subsidiaries,
Affiliates or Associates (as such terms are defined in the Rights
Agreement) (hereinafter, collectively, "Litton") as a result of the
approval, execution, delivery, performance, exercise of rights pursuant to,
amendment or consummation of any transaction contemplated by (i) the
Agreement and Plan of Merger dated as of June 3, 1999 by and among the
Company and Litton, as it may be amended from time to time (the
"Acquisition Agreement"), or (ii) the Company Stock Option Agreement dated
as of June 3, 1999 by and among the Company and Litton, as it may be
amended from time to time (the "Option Agreement").
The Rights Agreement provides that, until the Separation Time, the
Rights will be transferred with and only with the Common Stock. Common
Stock certificates issued after the Record Time but prior to the Separation
Time shall evidence one Right for each share of Common Stock represented
thereby and shall contain a legend incorporating by reference the terms of
the Rights Agreement (as such may be amended from time to time).
Notwithstanding the absence of the aforementioned legend, certificates
evidencing shares of Common Stock outstanding at the Record Time shall also
evidence one Right for each share of Common Stock evidenced thereby.
Promptly following the Separation Time, separate certificates evidencing
the Rights ("Rights Certificates") will be mailed to holders of record of
Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day (as defined
in the Rights Agreement) following the Separation Time. The Rights will
expire on the earliest of: (i) the Exchange Time (as defined below);
(ii) the close of business on October 10, 2004; (iii) the date on which the
Rights are redeemed as described below; (iv) upon the merger of the Company
into another corporation pursuant to an agreement entered into when there
is no Acquiring Person; and (v) the time immediately prior to the Effective
Time, as defined in the Acquisition Agreement (in any such case, the
"Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of
a Common Stock dividend on, or a subdivision or a combination into a
smaller number of shares of, Common Stock, or the issuance or distribution
of any securities or assets in respect of, in lieu of or in exchange for
Common Stock.
In the event that prior to the Expiration Time a Flip-in Date occurs,
the Company shall take such action as shall be necessary to ensure and
provide that each Right (other than Rights Beneficially Owned on or after
the Stock Acquisition Date by the Acquiring Person or any Affiliate or
Associate thereof, or by any transferee of any of the foregoing, which
Rights shall become void) shall constitute the right to purchase from the
Company, upon the exercise thereof in accordance with the terms of the
Rights Agreement, that number of shares of Common Stock or Participating
Preferred Stock of the Company having an aggregate Market Price (as defined
in the Rights Agreement), on the date of the public announcement of an
Acquiring Person's becoming such (the "Stock Acquisition Date") that gave
rise to the Flip-in Date, equal to twice the Exercise Price for an amount
in cash equal to the then current Exercise Price. In addition, the Board
of Directors of the Company may, at its option, at any time after a Flip-in
Date and prior to the time that an Acquiring Person becomes the Beneficial
Owner of more than 50% of the outstanding shares of Common Stock, elect to
exchange all (but not less than all) the then outstanding Rights (other
than Rights Beneficially Owned on or after the Stock Acquisition Date by
the Acquiring Person or any Affiliate or Associate thereof, or by any
transferee of any of the foregoing, which Rights become void) for shares of
Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date of the Separation Time (the
"Exchange Ratio"). Immediately upon such action by the Board of Directors
(the "Exchange Time"), the right to exercise the Rights will terminate and
each Right will thereafter represent only the right to receive a number of
shares of Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated under the preceding
paragraph to issue shares of Common Stock upon exercise of or in exchange
for Rights, the Company, at its option, may substitute therefor shares of
Participating Preferred Stock, at a ratio of one one-hundredth of a share
of Participating Preferred Stock for each share of Common Stock so
issuable.
In the event that prior to the Expiration Time the Company enters
into, consummates or permits to occur a transaction or series of
transactions after the time an Acquiring Person has become such in which,
directly or indirectly, (i) the Company shall consolidate or merge or
participate in a binding share exchange with any other Person if, at the
time of the consolidation, merger or share exchange or at the time the
Company enters into an agreement with respect to such consolidation, merger
or share exchange, the Acquiring Person controls the Board of Directors of
the Company and any term of or arrangement concerning the treatment of
shares of capital stock in such merger, consolidation or share exchange
relating to the Acquiring Person is not identical to the terms and
arrangements relating to other holders of Common Stock, or (ii) the Company
shall sell or otherwise transfer (or one or more of its subsidiaries shall
sell or otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or
(B) generating more than 50% of the operating income or cash flow, of the
Company and its subsidiaries (taken as a whole) to any other Person (other
than the Company or one or more of its wholly-owned subsidiaries) or to two
or more such Persons that are affiliated or otherwise acting in concert,
if, at the time of such sale or transfer of assets or at the time the
Company (or any such subsidiary) enters into an agreement with respect to
such sale or transfer, the Acquiring Person controls the Board of Directors
of the Company (a "Flip-over Transaction or Event"), the Company shall take
such action as shall be necessary to ensure, and shall not enter into,
consummate or permit to occur such Flip-over Transaction or Event until it
shall have entered into a supplemental agreement with the Person engaging
in such Flip-over Transaction or Event or the parent corporation thereof
(the "Flip-over Entity"), for the benefit of the holders of the Rights,
providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right
to purchase from the Flip-over Entity, upon exercise thereof in accordance
with the terms of the Rights Agreement, that number of shares of common
stock of the Flip-over Entity having an aggregate Market Price on the date
of consummation or occurrence of such Flip-over Transaction or Event equal
to twice the Exercise Price for an amount in cash equal to the then current
Exercise Price and (ii) the Flip-over Entity shall thereafter be liable
for, and shall assume, by virtue of such Flip-over Transaction or Event and
such supplemental agreement, all the obligations and duties of the Company
pursuant to the Rights Agreement. For purposes of the foregoing
description, the term "Acquiring Person" shall include any Acquiring Person
and its Affiliates and Associates counted together as a single Person.
The Board of Directors of the Company may, at its option, at any time
prior to the close of business on the Flip-in Date, redeem all (but not
less than all) the then outstanding Rights at a price of $.01 per Right
(the "Redemption Price"), as provided in the Rights Agreement. Immediately
upon the action of the Board of Directors of the Company electing to redeem
the Rights, without any further action and without any notice, the right to
exercise the Rights will terminate and each Right will thereafter represent
only the right to receive the Redemption Price in cash for each Right so
held.
The Company and the Rights Agent may amend the Rights Agreement
without the approval of any holders of Rights (i) prior to the close of
business on the Flip-in Date, in any respect and (ii) after the close of
business on the Flip-on Date, to make any changes that the Company may deem
necessary or desirable and which shall not materially adversely affect the
interests of the holders of Rights generally, or in order to cure any
ambiguity or to correct or supplement any provision which may be
inconsistent with any other provision or otherwise defective.
The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as stockholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. However, the
Rights may cause substantial dilution to a person or group that acquires
15% or more of the Common Stock unless the Rights are first redeemed by the
Board of Directors of the Company. Nevertheless, the Rights should not
interfere with a transaction that is in the best interests of the Company
and its stockholders because the Rights can be redeemed on or prior to the
close of business on the Flip-in Date, before the consummation of such
transaction.
Notwithstanding anything in the Rights Agreement to the contrary, the
approval, execution, delivery, performance, exercise of rights pursuant to,
amendment or consummation of any transaction contemplated by the
Acquisition Agreement or the Option Agreement shall not cause: (i) Litton
to become an Acquiring Person; (ii) a Stock Acquisition Date to occur;
(iii) a Flip-in Date to occur; (iv) a Flip-over Transaction or Event to
occur; or (v) the Separation Time to occur.
As of September 26, 1994 there were 15,927,191 shares of Common Stock
issued (of which 14,464,175 shares were outstanding and 1,463,016 shares
were held in treasury). As long as the Rights are attached to the Common
Stock, the Company will issue one Right with each new share of Common Stock
so that all such shares will have Rights attached.
The Stockholder Protection Rights Agreement, the First Amendment to
Stockholder Protection Rights Agreement and the Second Amendment to
Stockholder Protection Rights Agreement, which include as Exhibit A the
forms of Rights Certificate and Election to Exercise and as Exhibit B the
form of Articles of Amendment for the Company's Participating Preferred
Stock, are attached hereto as exhibits and are incorporated herein by
reference. The foregoing description of the Rights is qualified in its
entirety by reference to the Rights Agreement and such exhibits thereto.
Item 2. EXHIBITS.
EXHIBIT NO. DESCRIPTION
99.1 Stockholder Protection Rights Agreement (incorporated by
reference to Exhibit 99.1 to the registrant's Form 8-A
dated September 30, 1994, filed October 3, 1994, file no.
0-16572).
99.2 First Amendment to Stockholder Protection Rights Agreement
(incorporated by reference to Exhibit 99.2 to the registrant's
Form 8-A/A, filed February 1, 1999, file no. 0-16572).
99.3 Second Amendment to Stockholder Protection Rights
Agreement.
99.4 Forms of Rights Certificate and of Election to Exercise
(incorporated by reference to Exhibit 99.2 to the
registrant's Form 8-A dated September 30, 1994, filed
October 3, 1994, file no. 0-16572).
99.5 Form of Articles of Amendment for the Participating
Preferred Stock of the Company (incorporated by reference
to Exhibit 99.3 to the registrant's Form 8-A dated
September 30, 1994, filed October 3, 1994, file no. 0-
16572).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this Amendment No. 2 to its
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized.
AVONDALE INDUSTRIES, INC.
By: /S/ THOMAS M. KITCHEN
Thomas M. Kitchen
Vice President and Chief Financial Officer
Date: June 9, 1999
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
99.1 Stockholder Protection Rights Agreement, dated as of
September 26, 1994, between Avondale Industries, Inc. and
Boatmen's Trust Company, as Rights Agent (incorporated by
reference to Exhibit 99.1 to the registrant's Form 8-A dated
September 30, 1994, filed October 3, 1994, file no. 0-16572).
99.2 First Amendment to Stockholder Protection Rights Agreement
(incorporated by reference to Exhibit 99.2 to the
registrant's Form 8-A/A, filed February 1, 1999, file no.
0-16572).
99.3 Second Amendment to Stockholder Protection Rights Agreement.
99.4 Forms of Rights Certificate and of Election to Exercise
(incorporated by reference to Exhibit 99.2 to the registrant's
Form 8-A dated September 30, 1994, filed October 3, 1994, file
no. 0-16572).
99.5 Form of Articles of Amendment for the Participating Preferred
Stock of the Company (incorporated by reference to Exhibit 99.3
to the registrant's Form 8-A dated September 30, 1994, filed
October 3, 1994, file no. 0-16572).
SECOND AMENDMENT TO
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Second Amendment to the Stockholder Protection Rights Agreement,
dated as of September 26, 1994, between Avondale Industries, Inc., a
Louisiana corporation (the "Company"), and ChaseMellon Shareholder
Services, LLC (successor to Boatmen's Trust Company, a Missouri
corporation), as Rights Agent (the "Rights Agent") as amended by the First
Amendment thereto (the "First Amendment") dated January 19, 1999 (as
amended, the "Rights Agreement"), is dated and effective as of June 3,
1999.
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent have heretofore entered into
the Rights Agreement, and pursuant to Section 5.4 of the Rights Agreement,
the Company and the Rights Agent may amend or supplement the Rights
Agreement in any respect without the approval of any holders of Rights
prior to the close of business on the Flip-in Date (as defined in the
Rights Agreement); and whereas a Flip-in Date has not occurred;
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights
Agent have been in all respects authorized by the Company and the Rights
Agent.
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth in the Rights Agreement and this Amendment, the
parties hereby agree as follows:
1. The Rights Agreement is hereby amended by replacing all
references to "Newport News Shipbuilding, Inc." and "Newport News" included
in the definition of "Acquiring Person" in Section 1.1 with "Litton
Industries, Inc." and "Litton," respectively, so that the last sentence of
the definition of "Acquiring Person" in Section 1.1 shall hereafter read:
Notwithstanding anything herein to the contrary, the
term "Acquiring Person" shall not include Litton
Industries, Inc., a Delaware corporation, or its
Subsidiaries, Affiliates or Associates (hereinafter,
collectively, "Litton") as a result of the approval,
execution, delivery, performance, exercise of rights
pursuant to, amendment or consummation of any
transaction contemplated by (i) the Agreement and Plan
of Merger dated as of the date of this Amendment by and
among the Company and Litton, as it may be amended from
time to time (the "Acquisition Agreement") or (ii) the
Company Stock Option Agreement dated as of the date of
this Amendment by and among the Company and Litton, as
it may be amended from time to time (the "Option
Agreement").
2. The Rights Agreement is hereby further amended by replacing all
references to "Newport News" included in the definition of the terms
"Beneficial Owner," "Beneficial Ownership," and "Beneficially Own" in
Section 1.1 with "Litton," so that the last sentence of the definition of
the terms "Beneficial Owner," "Beneficial Ownership" and "Beneficially Own"
in Section 1.1 shall hereafter read:
Notwithstanding anything in this definition of
Beneficial Owner, Beneficial Ownership, and
Beneficially Own to the contrary, Litton shall not be
deemed to be the Beneficial Owner of, nor to have
Beneficial Ownership of, nor to Beneficially Own, any
of the Common Stock of the Company by reason of the
approval, execution, delivery, performance, exercise of
rights pursuant to, amendment or consummation of any
transaction contemplated by (i) the Acquisition
Agreement or (ii) the Option Agreement.
3. The parties acknowledge that pursuant to the First Amendment, the
Rights Agreement has been amended to add the following clause to the end of
the definition of "Expiration Time" in Section 1.1:
and (v) immediately prior to the Effective Time, as
defined in the Acquisition Agreement.
4. The parties further acknowledge that, pursuant to the First
Amendment, the Rights Agreement has been amended to add the following
sentence to the end of Section 4.3(c) thereof:
"Anything to the contrary notwithstanding, in no event shall the
Rights Agent be liable for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage."
5. The Rights Agreement is hereby further amended by deleting all
references to the "Newport News Transaction" and "Newport News" in Section
5.19 and by replacing such references with the "Litton Transaction" and
"Litton," respectively, so that section 5.19 shall hereafter read in its
entirety:
Section 5.19. LITTON TRANSACTION.
Notwithstanding anything in this Agreement to the
contrary, the approval, execution, delivery,
performance, exercise of rights pursuant to, amendment
or consummation of any transaction contemplated by the
Acquisition Agreement or the Option Agreement shall not
cause (i) Litton to become an Acquiring Person, (ii) a
Stock Acquisition Date to occur, (iii) a Flip-in Date
to occur, (iv) a Flip-over Transaction or Event to
occur, or (v) the Separation Time to occur.
6. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the internal laws of the State of Louisiana.
7. This Amendment to the Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed an original, and all such counterparts shall together constitute
but one and the same instrument.
8. Except as expressly set forth herein, this Amendment to the
Rights Agreement shall not by implication or otherwise alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Rights Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Rights Agreement to be duly executed on and as of the day and year
first above written.
Attest: AVONDALE INDUSTRIES, INC.
By: /S/ E.K. SIMON, JR. By: /S/ THOMAS M. KITCHEN
Name: E.K. Simon, Jr. Name: Thomas M. Kitchen
Title: V.P. Finance Title: Chief Financial Officer
Attest: CHASEMELLON SHAREHOLDER SERVICES, LLC
By: /S/ JANE A. MARTEN By: /S/ H. EUGENE BRADFORD
Name: Jane A. Marten Name: H. Eugene Bradford
Title: Assistant Vice Title: Vice President
President
