As filed with the Securities and Exchange Commission on April 26, 1996.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
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WESTCOTT COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Texas 75-2110878
(State of incorporation or (IRS Employer Identification No.)
organization)
1303 Marsh Lane 75006
Carrollton, Texas
(Address of principal executive (Zip Code)
offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
None
(Title of Class)
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Securities to be registered pursuant to Section 12(g) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Preferred Share Purchase Rights NASDAQ/NM
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
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On January 9, 1996, the Board of Directors of Westcott Communications, Inc.
(the "Company") declared a dividend of one preferred share purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share,
of the Company (the "Common Stock"). The dividend is payable on January 22,
1996 (the "Record Date") to the shareholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one one-hundredth of
a share of Series A Junior Participating Preferred Stock, par value $.01 per
share (the "Preferred Stock") of the Company at a price of $80.00 per one one-
hundredth of a share of Preferred Stock (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement dated as of January 9, 1996, as the same may be amended from time to
time (the "Rights Agreement"), between the Company and KeyCorp Shareholder
Services, Inc., as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons has acquired
beneficial ownership of 20% or more of the outstanding shares of Common Stock
(thereby becoming an "Acquiring Person") or (ii) 10 business days (or such later
date as may be determined by action of the Board of Directors prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 20% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock certificate
together with a copy of this Summary of Rights.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferred with and
only with the Common Stock. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates issued after the
Record Date upon transfer or new issuances of Common Stock will contain a
notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for shares of Common Stock
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights, will also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights. Rights will be
issued with all shares of Common Stock issued between the Record Date and the
Distribution Date.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on January 9, 2006 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of shares of Preferred Stock or
other securities or property issuable, upon exercise of the Rights is 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) upon the grant to holders of the Preferred Stock of certain rights
or warrants to subscribe for or purchase Preferred Stock at a price, or
securities convertible into Preferred Stock with a conversion price, less than
the then-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 periodic cash dividends or dividends payable in
Preferred Stock) or of subscription rights or warrants (other than those
referred to above).
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<PAGE>
The number of outstanding Rights is also subject to adjustment in the event
of a stock split of the Common Stock or a stock dividend on the Common Stock
payable in shares of Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Shares of Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of $1.00 per
share but will be entitled to an aggregate dividend of 100 times the dividend
declared per share of Common Stock. In the event of liquidation, the holders of
the Preferred Stock will be entitled to a minimum preferential liquidation
payment of $100.00 per share (plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 100 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 100 votes, voting
together with the Common Stock. In addition, the Preferred Stock will vote
separately as a class where required by law. These rights are protected by
customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of the one one-hundredth interest in a share of
Preferred Stock purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right at the then-
current exercise price of the Right, that number of shares of Common Stock
having a market value of two times the exercise price of the Right.
In the event that, after a person or group has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provisions will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become void) will
thereafter have the right to receive, upon the exercise thereof at the then-
current exercise price of the Right, that number of shares of common stock of
the person with whom the Company has engaged in the foregoing transaction (or
its parent) which at the time of such transaction will have a market value of
two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the earlier of one of the events described in the previous paragraph or the
acquisition by such person or group of 50% or more of the outstanding shares of
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have become void),
in whole or in part, for shares of Common Stock, or one one-hundredths of a
share of Preferred Stock (or shares of a class or series of the Company's
preferred stock having equivalent rights, preferences and privileges), having a
value per Right equal to the difference between the market value of the shares
of Common Stock receivable upon exercise of the Right and the exercise price of
the Right.
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
Purchase Price. No fractional shares of Preferred Stock will be issued (other
than fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be evidenced by
depositary receipts), and in lieu thereof an adjustment in cash will be made
based on the market price of the Preferred Stock on the last trading day prior
to the date of exercise.
At any time prior to the time an Acquiring Person has become such, the Board
of Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the "Redemption
3
<PAGE>
Price"). The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may, except with
respect to the redemption price, amend the Rights in any manner. After the
Rights are no longer redeemable, the Company may, except with respect to the
redemption price, amend the Rights in any manner that does not adversely affect
the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends.
Each outstanding share of Common Stock on January 22, 1996 will receive one
Right. The Company will issue one Right (subject to adjustment) for each share
of Common Stock issued between the Record Date and the Distribution Date so that
all such shares will have attached Rights. 290,000 shares of Preferred Stock
will initially be reserved for issuance upon exercise of the Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in certain circumstances. Accordingly, the existence of the Rights may deter
certain acquirors from making takeover proposals or tender offers. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors of the Company since the Board of Directors may, at its
option, at any time prior to the time an Acquiring Person has become such,
redeem all but not less than all the then outstanding Rights at $.01 per Right.
On April 22, 1996, the Company announced that the Company, K-III Acquisition
Corp. (the "Purchaser"), a Texas corporation, K-III Prime Corporation ("K-III
Prime"), a Delaware corporation, and K-III Communications Corporation (the
"Parent"), a Delaware corporation, entered into an Agreement and Plan
of Merger (the "Merger Agreement") pursuant to which the Purchaser will commence
a tender offer (the "Offer") for all outstanding Common Stock for $21.50 per
share (the "Per Share Amount") in cash. The Offer will commence no later than
April 26, 1996 and will be conditioned on there being validly tendered that
number of shares that, when added to the shares already owned by the Parent and
its direct and indirect subsidiaries, constitutes a majority of the then
Outstanding Shares on a Fully Diluted Basis (as defined in the Merger Agreement)
as well as other customary conditions, including regulatory approvals.
Immediately prior to the execution of the Merger Agreement, the Company
executed an amendment to the Rights Agreement (the "Amendment"). The Amendment
provides that none of the execution or delivery of the Merger Agreement or the
making of the Offer, in each case in accordance with the Merger Agreement, shall
cause (i) Parent, K-III Prime or the Purchaser or any of their Affiliates (as
defined in the Rights Agreement) or Associates (as defined in the Rights
Agreement) to be an Acquiring Person, (ii) a Stock
4
<PAGE>
Acquisition Date (as defined in the Rights Agreement) to occur, or (iii) a
Distribution Date to occur in accordance with the terms of the Rights Agreement.
None of the acceptance for payment or payment for shares of Common Stock by the
Purchaser pursuant to the Offer, in each case in accordance with the Merger
Agreement, shall cause (i) Parent, K-III Prime or the Purchaser or any of their
Affiliates or Associates to be an Acquiring Person, (ii) a Stock Acquisition
Date to occur, or (iii) a Distribution Date to occur in accordance with the
terms of the Rights Agreement; provided, that if, prior to the time that the
Rights have expired, the Merger Agreement is terminated pursuant to its terms,
then the provisions of the Amendment terminate. The Amendment also provides
that the Final Expiration Date shall occur no later than immediately prior to
the purchase of shares of Common Stock pursuant to the Offer.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit B thereto the form
of Right Certificate, is attached as Exhibit 1 to the Form 8-A and is
incorporated herein by reference. The forgoing description of the Rights does
not purport to be complete and is qualified in its entirety by reference to the
form of Rights Agreement (and the exhibits thereto) and the Amendment attached
hereto.
5
<PAGE>
Item 2. Exhibits.
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Exhibit No. Description of Exhibit
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1a. Form of Rights Agreement dated as of January 9, 1996 between
the Company and KeyCorp Shareholder Services, Inc., as Rights
Agent, which includes as Exhibit A the Form of Certificate of
Designations of Series A Junior Participating Preferred Stock
of Westcott Communications, Inc., as Exhibit B the Form of
Right Certificate, and as Exhibit C the Summary of Rights to
Purchase Shares of Preferred Stock of Westcott Communications,
Inc. (Incorporated by reference to Exhibit 1a of Form 8-A
filed with the Securities and Exchange Commission on January
11, 1996)
1b. First Amendment to Rights Agreement dated as of April 22, 1996
between Westcott Communications, Inc., a Texas corporation and
KeyCorp Shareholder Services, Inc.
SIGNATURES
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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, thereto duly authorized.
WESTCOTT COMMUNICATIONS, INC.
Date: April 26, 1996
By: /S/ ROBERT J. JOHNSTON
------------------------------------------
Robert J. Johnston, Vice President
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
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1a. Form of Rights Agreement dated as of January 9, 1996
between the Company and KeyCorp Shareholder Services,
Inc., as Rights Agent, which includes as Exhibit A the
Form of Certificate of Designations of Series A Junior
Participating Preferred Stock of Westcott
Communications, Inc., as Exhibit B the Form of Right
Certificate, and as Exhibit C the Summary of Rights to
Purchase Shares of Preferred Stock of Westcott
Communications, Inc. (Incorporated by reference to
Exhibit 1a of Form 8-A filed with the Securities and
Exchange Commission on January 11, 1996)
1b. First Amendment to Rights Agreement dated as of April 22,1 996
between Westcott Communications, Inc., a Texas corporation and
KeyCorp Shareholder Services, Inc.
7
EXHIBIT 1b
FIRST AMENDMENT TO RIGHTS AGREEMENT
This Amendment, dated as of April 22, 1996 (the "Amendment"), is between
Westcott Communications, Inc., a Texas corporation (the "Company"), and KeyCorp
Shareholder Services, Inc. (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 January 9, 1996 (the "Agreement"); and
WHEREAS, pursuant to Section 27 of the Agreement, the Company and the
Rights Agent desire to amend the Agreement as 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. Amendment to Section 1 of the Agreement.
---------------------------------------
(a) The following definitions are added to Section 1 of the Agreement:
"Acquiror" shall mean K-III Prime Corporation, Delaware corporation
and a wholly owned subsidiary of Parent.
"Acquiror Sub" shall mean K-III Acquisition Corporation, Texas
corporation and a wholly owned subsidiary of Acquiror.
"Acquiror Sub 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.
"Merger" shall mean the merger of Acquiror Sub with and into the
Company in accordance with the Texas Business Corporation Act following
the consummation of the Acquiror Sub 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 April 22, 1996, among Parent, Acquiror, Acquiror Sub, and the
Company, as it may be amended from time to time.
"Parent" shall mean K-III Communications Corporation, a Delaware
corporation.
<PAGE>
Section 2. Amendment to Section 7(a) of the Agreement.
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Section 7(a) of the Agreement is hereby amended by deleting the word "or"
in the penultimate line of such subsection and substituting in its place "," and
inserting immediately after the word "hereof" in the last line thereof the
following: "or (iv) immediately prior to the purchase of Common Stock pursuant
to the Acquiror Sub Offer."
Section 3. New Section 35 to the Agreement.
-------------------------------
The following is added as a new Section 35 to the Agreement:
Section 35. Acquiror Sub Offer; Merger etc. None of the execution or
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delivery of the Merger Agreement or the making of the Acquiror Sub Offer,
in each case in accordance with the Merger Agreement, shall cause (i)
Parent, Acquiror or Acquiror Sub or any of their Affiliates or Associates
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. None of
the acceptance for payment or payments for shares of Common Stock by
Acquiror Sub pursuant to the Acquiror Sub Offer, in each case in accordance
with the Merger Agreement, shall cause (i) Parent, Acquiror or Acquiror Sub
or any of their Affiliates or Associates 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; 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 (iv) of Section 7(a) hereof shall be of any effect.
Section 4. 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 5. Governing Law. This Amendment shall be deemed to be a contract
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made under the laws of the State of Texas 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 6. Counterparts. This Amendment may be executed in any number of
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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 7. Effect of Amendment. Except as expressly modified herein, the
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Agreement shall remain in full force and effect.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
WESTCOTT COMMUNICATIONS, INC.
By:
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Name:
---------------------------------------
Title:
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KEYCORP SHAREHOLDER SERVICES, INC.
By:
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Mark Asbury, Vice President
