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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DR PEPPER/SEVEN-UP COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-2233365
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
8144 Walnut Hill Lane
Dallas, Texas 75231-4372
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class
to be so registered is to be registered
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Rights to Purchase New York Stock Exchange
Preferred Stock
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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Item 1. Description of Registrant's Securities to be Registered.
(The text of this document has been re-typed)
On September 1, 1993, the Board of Directors of Dr
Pepper/Seven-Up Companies, Inc. (the "Company") declared a dividend of
one right to purchase preferred stock ("Right") for each outstanding
share of the Company's Voting Common Stock and Nonvoting Common Stock,
par value $.01 per share (respectively, "Voting Common Stock" and
"Nonvoting Common Stock" and collectively, "Common Stock"), to
stockholders of record at the close of business on September 13, 1993.
Each Right entitles the registered holder to purchase from the Company
a unit consisting of one one-thousandth of a share (a "Unit") of
Series A Junior Participating Preferred Stock, par value $.01 per
share (the "Preferred Stock"), at a purchase price of $90 per Unit,
subject to adjustment (the "Purchase Price"). The description and
terms of the Rights are set forth in a Rights Agreement dated as of
September 1, 1993 (the "Rights Agreement") between the Company and
Bank One, Texas, N.A., as Rights Agent. The Rights issued in respect
of each share of Voting Common Stock shall be VCS Rights ("VCS
Rights") and the Rights issued in respect of each share of Nonvoting
Common Stock shall be NCS Rights ("NCS Rights").
Initially, the Rights will be attached to all certificates
representing outstanding shares of Common Stock, and no separate
certificates for the Rights ("Rights Certificates") will be
distributed. The Rights will separate from the Common Stock and a
"Distribution Date" will occur upon the earlier of (i) ten days
following a public announcement that a person or group of affiliated
or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 10% or more of
the outstanding shares of Voting Common Stock (the date of the
announcement being the "Stock Acquisition Date"), or (ii) ten business
days (or such later date as may be determined by the Company's Board
of Directors before the Distribution Date occurs) following the
commencement of a tender offer or exchange offer that would result in
a person's becoming an Acquiring Person. Until the Distribution Date,
(a) the Rights will be evidenced by the Common Stock certificates
(together with a copy of this Summary of Rights or bearing the
notation referred to below) and will be transferred with and only with
such Common Stock certificates, (b) new Common Stock certificates
issued after September 13, 1993 will contain a notation incorporating
the Rights Agreement by reference and (c) the surrender for transfer
of any certificate for Common Stock (with or without a copy of this
Summary of Rights) will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. At
any time prior to the Distribution Date, the Board of Directors may
increase the level of beneficial ownership at which a specified person
becomes an Acquiring Person.
A holder of Nonvoting Common Stock is deemed to be the
beneficial owner of the shares of Voting Common Stock into which such
Nonvoting Common Stock is convertible notwithstanding the fact that a
Conversion Event (as defined in the Company's Amended and Restated
Certificate of Incorporation) has not occurred or that such shares of
Nonvoting Common Stock have not yet been converted. The shares of
Voting Common Stock issuable upon conversion of all of the then
outstanding Nonvoting Common Stock owned by any person are deemed to
be outstanding for purposes of determining a particular percentage of
the outstanding shares of Voting Common Stock. Cadbury Schweppes PLC
will not be deemed an Acquiring Person unless and until it becomes a
beneficial owner of 26% of the Voting Common Stock.
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The Rights are not exercisable until the Distribution Date and
will expire at the close of business on September 13, 2003, unless
earlier redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of Common Stock as of
the close of business on the Distribution Date and, from and after the
Distribution Date, the separate Rights Certificates alone will
represent the Rights. All shares of Voting Common Stock and Nonvoting
Common Stock issued prior to the Distribution Date will be issued with
VCS Rights and NCS Rights, respectively. Shares of Voting Common
Stock and Nonvoting Common Stock issued after the Distribution Date in
connection with certain employee benefit plans or upon conversion of
certain securities will be issued with VCS Rights and NCS Rights,
respectively. Except as otherwise determined by the Board of
Directors, no other shares of Common Stock issued after the
Distribution Date will be issued with Rights.
In the event (a "Flip-In Event") that a person becomes an
Acquiring Person (except pursuant to a tender or exchange offer for
all outstanding shares of Common Stock at a price and on terms that a
majority of the independent directors of the Company determines to be
fair to and otherwise in the best interests of the Company and its
stockholders (a "Permitted Offer")), each holder of a VCS Right and a
NCS Right will thereafter have the right to receive, upon exercise of
such Right, a number of shares of Voting Common Stock and Nonvoting
Common Stock, respectively (or, in certain circumstances, cash,
property or other securities of the Company) having a Current Market
Price (as defined in the Rights Agreement) equal to two times the
exercise price of the Right. Notwithstanding the foregoing, following
the occurrence of any Flip-In Event, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain related
parties) will be null and void in the circumstances set forth in the
Rights Agreement. However, Rights are not exercisable following the
occurrence of any Flip-In Event until such time as the Rights are no
longer redeemable by the Company as set forth below. Each share of
Nonvoting Common Stock is deemed to have the same value as a share of
Voting Common Stock.
For example, at an exercise price of $90 per Right, each Right
not owned by an Acquiring Person (or by certain related parties)
following an event set forth in the preceding paragraph would entitle
its holder to purchase $180 worth of Common Stock (or other
consideration, as noted above), based upon its then Current Market
Price, for $90. Assuming that the Common Stock had a Current Market
Price of $20 per share at such time, the holder of each valid Right
would be entitled to purchase 9 shares of Common Stock for $90.
In the event (a "Flip-Over Event") that, at any time on or
after the Stock Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction (other than certain
mergers that follow a Permitted Offer), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder
of a Right (except Rights that previously have been voided as set
forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company
having a Current Market Price equal to two times the exercise price of
the Right. Flip-In Events and Flip-Over Events are collectively
referred to as "Triggering Events."
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The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or 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 on, or a
subdivision, combination or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible securities at
less than the current market price of the Preferred Stock, or (iii)
upon the distribution to holders of the Preferred Stock of evidences
of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of
the Purchase Price. No fractional Units are required to be issued
and, in lieu thereof, an adjustment in cash may be made based on the
market price of the Preferred Stock on the last trading date prior to
the date of exercise. Pursuant to the Rights Agreement, the Company
reserves the right to require prior to the occurrence of a Triggering
Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
At any time until ten days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right, payable, at the option of the Company, in
cash, shares of Common Stock or such other consideration as the Board
of Directors may determine. After the redemption period has expired,
the Company's right of redemption may be reinstated prior to the
occurrence of any Triggering Event if (i) an Acquiring Person reduces
its beneficial ownership to 10% or less of the outstanding shares of
Voting Common Stock in a transaction or series of transactions not
involving the Company and (ii) there are no other Acquiring Persons.
Immediately upon the effectiveness of the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate
and the only right of the holders of Rights will be to receive the
$.01 redemption price.
At any time after the occurrence of a Flip-In Event and prior
to a person's becoming the beneficial owner of 50% or more of the
shares of Voting Common Stock then outstanding, the Company may
exchange the VCS Rights and NCS Rights (other than Rights owned by an
Acquiring Person or an affiliate or an associate of an Acquiring
Person, which will have become void), in whole or in part, at an
exchange ratio of one share of Voting Common Stock and Nonvoting
Common Stock respectively, and/or other equity securities deemed to
have the same value as one share of Common Stock, per Right, subject
to adjustment.
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. While the
distribution of the Rights should not be taxable to stockholders or to
the Company, stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company
or for the common stock of the acquiring company as set forth above or
are exchanged as provided in the preceding paragraph.
Other than certain provisions relating to the principal
economic terms of the Rights, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company
prior to the Distribution Date. Thereafter, the provisions of the
Rights Agreement may be amended by the Board of Directors in order to
cure any ambiguity, defect or inconsistency, to make changes that do
not
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<PAGE>
materially adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten or
lengthen any time period under the Rights Agreement; provided,
however, that no amendment to lengthen the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
The Rights will have certain anti-takeover effects. The
Rights will cause substantial dilution to any person or group that
attempts to acquire the Company without the approval of the Company's
Board of Directors. As a result, the overall effect of the Rights may
be to render more difficult or discourage any attempt to acquire the
Company even if such acquisition may be favorable to the interests of
the Company's stockholders. Because the Company's Board of Directors
can redeem the Rights or approve a Permitted Officer, the Rights
should not interfere with a merger or other business combination
approved by the Board of Directors of the Company.
On January 25, 1995, the Company announced that the Company,
Cadbury Schweppes plc, a corporation organized under the laws of
England ("Cadbury") and DP/SU Acquisition Inc., a Delaware corporation
and an indirect wholly owned subsidiary of Cadbury ("DP/SU"), entered
into a definitive agreement and plan of merger (the "Merger Agreement")
providing for the acquisition by DP/SU of all outstanding shares of
the Company's Common Stock. Under the Merger Agreement, DP/SU will
commence a tender offer for all outstanding Common Stock of the
Company not already owned by Cadbury or its subsidiaries for $33.00
per share in cash. The tender offer will be followed by a merger of
DP/SU with the Company. Upon the approval and adoption of the
Merger Agreement by the affirmative vote of the stockholders of the
Company to the extent required by Delaware law, DP/SU will merge with
the Company and each share not held in the treasury of the Company, or
owned by Cadbury or DP/SU shall be automatically converted into the
right to receive $33.00 in cash. The tender offer will commence no
later than Wednesday, February 1, 1995 and will be conditioned on
there being validly tendered that number of shares that, when added to
the shares already owned by Cadbury or its subsidiaries, constitutes a
majority of the outstanding shares of Common Stock of the Company (on
a fully diluted basis), as well as other customary conditions, including
regulatory approvals.
Immediately prior to the execution of the Merger Agreement,
the Company amended the Rights Agreement (the "Amendment"). The
Amendment provides that (A) none of the execution or delivery of the
Merger Agreement or the Stockholders Agreement or the making of the
Offer will cause (i) the Rights to become exercisable under the Rights
Agreement, (ii) Parent or Purchaser or any of their affiliates to be
deemed an Acquiring Person or (iii) the Stock Acquisition Date to
occur upon any such event, (B) none of the acceptance for payment or
payment for Shares by Purchaser pursuant to the Offer or the
consummation of the Merger will cause (i) the Rights to become
exercisable under the Rights Agreement or (ii) Parent or Purchaser or
any of their affiliates to be deemed an Acquiring Person or (iii) the
Stock Acquisition Date to occur upon any such event, and (C) the
Expiration Date (as defined in the Rights Agreement) shall occur no
later than immediately prior to the purchase of shares pursuant to the
Offer; provided, however, that if the Merger Agreement is terminated
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in accordance with its terms, the Board may rescind its approval of
the Offer as a Permitted Offer or further amend the Rights Agreement
so that clauses (B) and (C) above will not be the case.
The certification of designation of the Series A Junior
Participating Preferred Stock, the form of Rights Certificate and the
Summary of Rights to Purchase Preferred Stock are attached as Exhibits
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<PAGE>
A, B and C, respectively, to the Rights Agreement (which is included
as Exhibit 1 to the Form 8-A filed September 1, 1993). The summary of
the Rights Agreement and the Amendment set forth above does not
purport to be complete and is qualified in its entirety by reference
to the Rights Agreement and the Amendment which are filed as exhibits
hereto and are incorporated herein by reference.
Item 2 - Exhibits Page
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Exhibit 1 Stockholder Rights Incorporated by
Agreement, dated reference to Exhibit
September 1, 1993, 1 of Form 8-A filed
by and between with the Securities
Dr Pepper/Seven-Up and Exchange
Companies, Inc. and Commission on
Bank One, Texas, September 1, 1993.
N.A., Rights Agent.
Exhibit 2 Amendment dated as Exhibit 2 - 1
of January 25, 1995
to Stockholder
Rights Agreement,
dated September 1,
1993, by and between
Dr Pepper/Seven-Up
Companies, Inc. and
Bank One, Texas,
N.A., as Rights
Agent.
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<PAGE>
SIGNATURE
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, thereto duly
authorized.
Date: February 1, 1995 DR PEPPER/SEVEN-UP COMPANIES, INC.
By: /s/ Nelson A. Bangs
--------------------------------------------
Name: Nelson A. Bangs
Title: Vice President, Secretary &
General Counsel
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EXHIBIT 2
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FIRST AMENDMENT TO RIGHTS AGREEMENT
This Amendment, dated as of January 25, 1995 (the
"Amendment"), is between Dr Pepper/Seven-Up Companies, Inc., a
Delaware corporation (the "Company"), and Bank One, Texas, N.A., a
national banking association (the "Rights Agent"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the Rights Agent are parties to a
Rights Agreement dated as of September 1, 1993 (the "Agreement"); and
WHEREAS, pursuant to Section 27 of the Agreement, the Company
and the Rights Agent desire to amend the Agreement set forth below.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Amendments to Section 1.
(a) The definition of "Beneficial Owner" is amended by adding
the following at the end of the definition:
Notwithstanding anything contained in this Agreement to the
contrary, neither Parent nor its Affiliates shall be deemed to be
the Beneficial Owner of nor to beneficially own any Common Stock
beneficially owned by a Director Stockholder as a result of the
Stockholders Stock Tender Agreement unless and until such Common
Stock is accepted for purchase or purchased pursuant to the
Offer. No Director Stockholder shall be deemed to be the
Beneficial Owner of nor to beneficially own any Common Stock that
is beneficially owned by either another Director Stockholder or
by Parent or its Affiliates as a result of the Stockholders Stock
Tender Agreement.
(b) The definition of Expiration Date is amended by deleting
such definition in its entirety and substituting the following:
"Expiration Date" shall mean the earliest of (i) the Final
Expiration Date, (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof, (iii) the time at which the
Rights expire pursuant to Section 13(d) hereof, (iv) the time at
which all Rights then outstanding and exercisable are exchanged
pursuant to Section 24 hereof and (v) immediately prior to the
purchase of Common Stock pursuant to the Cadbury Offer. Upon the
Expiration Date, the Rights shall expire.
(c) The definition of "Permitted Offer" is amended by adding
the following at the end of the definition:
Exhibit 2 - 1
<PAGE>
At any time prior to the acceptance of Common Stock pursuant to a
Permitted Offer, the Board of Directors may rescind the
determination that a tender offer or exchange offer is a
Permitted Offer.
(d) The following definitions are added to Section 1 of the
Agreement:
"Cadbury Offer" shall mean the cash tender offer to acquire
all the issued and outstanding shares of Common Stock which is
defined as the "Offer" in the Merger Agreement;
"Director Stockholders" (individually, a Director
Stockholder) shall mean those directors of the Company that are
parties to the Stockholders Stock Tender Agreement.
"Merger" shall mean the merger of Purchaser with and into
the Company in accordance with the General Corporation Law of the
State of Delaware following the consummation of the Cadbury Offer
and upon the terms and subject to the conditions set forth in the
Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of January 25, 1995, among Parent, Purchaser,
and the Company. but shall not include any amendment to such
Merger Agreement.
"Parent" shall mean Cadbury Schweppes plc, a company
organized under the laws of England and any assignee of Parent
pursuant to Section 9.5 of the Merger Agreement.
"Purchaser" shall mean DP/SU Acquisition Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Parent and
any assignee of Purchaser pursuant to Section 9.05 of the Merger
Agreement.
"Stockholders Stock Tender Agreement" shall mean that
agreement dated as of January 25, 1995 among Parent and the
Director Stockholders providing for among other things, the
agreement of the Director Stockholders to tender Common Stock
pursuant to the Cadbury Offer as described in the Merger
Agreement.
Section 2. New Section 35.
The following is added as a new Section 35:
Section 35. Cadbury Offer; Merger etc. None of the
execution or delivery of the Merger Agreement or the Stockholders
Stock Tender Agreement or the making of the Cadbury Offer, in
each case in accordance with the Merger Agreement, shall cause
(i) Parent or Purchaser or any of their Affiliates to be an
Acquiring Person, (ii) a Stock Acquisition Date to occur or (iii)
a Distribution Date to occur in accordance with the terms hereof,
which Distribution Date, if any, shall instead be indefinitely
deferred until such time as the Board of Directors may otherwise
determine. None of the acceptance for payment or payment of
shares of Common Stock by Purchaser pursuant to the Cadbury Offer
(including shares covered by the Stockholders Stock Tender
Agreement) nor the consummation of the Merger, in each case in
accordance with the Merger Agreement, shall cause (i) Parent or
Purchaser or any of their Affiliates to be an
Exhibit 2 - 2
<PAGE>
Acquiring Person, (ii) a Stock Acquisition Date to occur or (iii) a
Distribution Date to occur in accordance with the terms hereof,
which Distribution Date shall instead be indefinitely deferred
until such time as the Board of Directors may otherwise determine;
provided, that if, prior to the time that the Rights have expired,
the Merger Agreement is terminated pursuant to its terms, then
neither the provisions of this sentence (other than this proviso)
nor clause (v) of the definition of "Expiration Date" shall be of
any effect.
Section 3. Severability. If any term, provision, covenant
or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Amendment shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
Section 4. Governing Law. This 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 made and to be performed
entirely within such State.
Section 5. Counterparts. This 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.
Section 6. Effect of Amendment. Except as expressly
modified herein, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed all as of the day and year first above
written.
DR PEPPER/SEVEN-UP COMPANIES
By /s/ Nelson A. Bangs
---------------------------
Name: Nelson A. Bangs
Title: Vice President, General
Counsel and Secretary
BANK ONE TEXAS, N.A.
By /s/ Jeff Salavarria
---------------------------
Name: Jeff Salavarria
Title: Assistant Vice President
Exhibit 2 - 3
