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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 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RAILAMERICA
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 65-0328006
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(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
5300 BROKEN SOUND BLVD., N.W., BOCA RATON, FL 33487
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [ ] box. [X]
Securities Act registration statement file number to which this form relates:
N/A
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act: NONE
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK PURCHASE RIGHTS
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On January 6, 1998, the Board of Directors (the "Board") of
RailAmerica, Inc., a Delaware corporation (the "Company"), authorized and
approved a dividend distribution of one Right (each "Right" and collectively the
"Rights") for each outstanding share of common stock, $.001 par value per share
(the "Common Stock"), of the Company to stockholders of record at the close of
business on January 20, 1998. Each Right initially entitles the registered
holder to purchase from the Company one share of Common Stock at a price of
$36.00 per share (the "Purchase Price"), subject to certain adjustments. The
Purchase Price shall be paid in cash. The description and terms of the Rights
are set forth in the Common Stock Purchase Rights Agreement (the "Rights
Agreement") between the Company and American Stock Transfer & Trust Company, as
Rights Agent. The material terms of the Rights Agreement are summarized below.
Initially, the Rights will be represented by the Common Stock
certificates representing shares then outstanding, and no separate Rights
certificates will be distributed. The Rights will separate from the Common Stock
and a distribution of the Rights certificates will occur upon the earlier of (i)
ten business 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 15% or more of the
outstanding shares of Common Stock, (ii) ten business days following a public
announcement that a person or group of affiliated or associated persons has (x)
become the direct or indirect beneficial owner of at least 10% of the Company's
outstanding Common Stock, and (y) whose ownership interest is deemed by the
Board to cause a material adverse impact on the business or prospects of the
Company or its stockholders (such persons or group hereinafter called an
"Adverse Person"), or (iii) ten business days following the commencement of a
tender offer or exchange offer that would result in a person or group becoming
an Acquiring Person or an Adverse Person. Until the date that the Rights
certificates are distributed (the "Distribution Date"), (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and only
with such Common Stock certificates, (ii) new Common Stock certificates issued
after the date that the Rights Plan is adopted will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding also will constitute
the transfer of the Rights associated with the Common Stock represented by such
certificates.
As amended, the definition of an Acquiring Person, excludes (i) the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any such
plan, (ii) EGS Associates, L.P., a Delaware limited partnership, EGS Partners
L.L.C., a Delaware limited liability company, Bev Partners, L.P., a Delaware
limited partnership, Jonas Partners, L.P., a Delaware limited partnership,
William Ehrman, Frederic Greenberg, Frederick Ketcher, Jonas Gerstl, James
McLaren or William Lautman, unless such Persons shall be the Beneficial Owners,
individually or in the aggregate, of thirty percent (30%) or more of the shares
of Common Stock then outstanding; provided, however, that
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such percentage shall be reduced to twenty percent (20%) upon the earlier to
occur of (x) the completion of the merger of Rail Tex, Inc. with and into a
wholly-owned subsidiary of the Company and (y) April 30, 2000, (iii) Barclays
Bank PLC and the lenders named in that certain Senior Secured Loan Facility and
Guaranty Agreement (the "Facility") dated as of April 30, 1999 among Freight
Victoria, the Company, RailAmerica Australia Pty Ltd., Barclays Bank PLC and the
lenders named therein (such lenders collectively with Barclays Bank PLC to be
referred to hereinafter as the "Lenders"), but only with respect to (A) warrants
(the "Warrants") to purchase shares of Common Stock issued by the Company to the
Lenders pursuant to the Facility and pursuant to that certain Warrant Agreement
dated as of April 30, 1999 between the Company and the Lenders and (B) the
shares of Common Stock issuable upon exercise of the Warrants, it being
understood that all other shares of Common Stock acquired by the Lenders
independent of (A) or (B) above shall be considered for purposes of determining
Acquiring Person status of Lenders; or (iv) any Person who or which, together
with all Affiliates and Associates of such Person, would be an Acquiring Person
solely by reason of a reduction in the number of issued and outstanding shares
of Common Stock of the Company pursuant to a transaction or series of related
transactions approved by a majority of the Independent Directors, if any, then
in office and approved by a Supermajority Vote; provided, further, however, that
in the event that such Person described in the foregoing clause (iv) does not
become an Acquiring Person by reason of the foregoing clause (iv), such Person
shall nonetheless become an Acquiring Person in the event such Person thereafter
acquires Beneficial Ownership of an additional one percent (1%) of the Common
Stock of the Company, unless such additional Common Stock ownership results
solely from a subsequent reduction in the number of issued and outstanding
shares of Common Stock of the Company.
The Rights are not exercisable until the Distribution Date and will
expire ten years after the adoption of the Rights Agreement, unless earlier
redeemed by the Company as described below.
Upon a triggering event and as soon as practicable after the
Distribution Date, Rights certificates will be mailed to holders of record of
the Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights certificates alone will represent the Rights.
Except as otherwise determined by the Board, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
In the event a person or group of affiliated or associated persons
becomes an Acquiring Person or an Adverse Person (except pursuant to an offer
for all outstanding shares of Common Stock that is determined by the Board to be
fair to and otherwise in the best interest of the Company and its stockholders,
a "Qualifying Tender Offer"), each Right then outstanding would "flip-in" and
become a right to buy that number of shares of Common Stock of the Company which
at the time of such acquisition would have a market value of two times the
exercise price of the Right. The acquiror who triggered the Rights would be
excluded from the "flip-in" because his Rights would have become null and void
upon his triggering acquisition.
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In the event that the "flip-in" is triggered, if there is not
sufficient authorized Common Stock available for issuance upon the exercise of
each Right or if the Board so elects, the Board may: (i) seek stockholder
approval to increase the number of authorized shares of Common Stock or (ii)
designate as issuable upon exercise of the Rights such amount of Common Stock,
cash, other equity or debt securities, assets and/or other consideration as
would be equal to the value that would have been received if each Right had
received only Common Stock upon exercise.
If, following a person or group of affiliated or associated persons
becoming an Acquiring Person or an Adverse Person, (i) the Company shall
consolidate with or merge into any other person or entity in which the Company
is not the surviving corporation, (ii) any other person or entity shall merge
into the Company and all or part of the outstanding Common Stock shall be
changed into or exchanged for securities of any other person or entity, or cash
or any other property, or (iii) the Company sells 50% or more of its assets or
earning power, each Right then outstanding would "flip-over" and thereby would
become a right to buy that number of shares of common stock of the acquiring
company which at the time of such transaction has a market value of two times
the exercise price of the Right.
At any time after a person or group of affiliated or associated persons
becomes an Acquiring Person or an Adverse Person and before the acquisition by
such person or group of 50% or more of the outstanding Common Stock of the
Company, the Board may exchange the Rights (other than Rights owned by such
person or group which have become void), in whole or in part, for Common Stock
at an exchange ratio of 1.0 share of the Company's Common Stock per Right,
subject to adjustment.
At any time until ten days (subject to extension) by the Company
following the public announcement that a person or group of affiliated or
associated persons has become an Acquiring Person or an Adverse Person, the
Company may redeem the Rights at a price of $.001 per Right, payable in cash.
For as long as the Rights are then redeemable, the Company may extend the period
during which it may redeem the Rights. Under certain circumstances set forth in
the Rights Agreement, the decision to redeem or to extend the period during
which the Rights are redeemable shall require the concurrence of at least two
thirds of the members of the Board and a majority of the Independent Directors
(as hereinafter defined). After the redemption period has expired, the Company's
rights of redemption may be reinstated if the Acquiring Person or Adverse Person
reduces his or her beneficial ownership to less than 10% of the outstanding
shares of Common Stock in a transaction or series of transactions not involving
the Company. Immediately upon the action of the Board ordering redemption of the
Rights, with, where required, the concurrence of at least two thirds of the
members of the Board and a majority of the Independent Directors, the Rights
will terminate and the only right which the holders of Rights will thereafter
have will be to receive the $.001 redemption price.
The term "Independent Directors" means any member of the Board who is
not an Acquiring Person or Adverse Person, is not an employer or officer of the
Company or an employee, officer or director of any Acquiring Person or Adverse
Person, and is not a relative or
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spouse of (i) an Acquiring Person or Adverse Person, (ii) any officer or other
person employed in a management position with the Company or with any Acquiring
Person or Adverse Person, or (iii) any director of any Acquiring Person or
Adverse Person.
The Purchase Price payable, and the number of shares of Common Stock
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 Common Stock, (ii) if
holders of the Common Stock are granted certain rights or warrants to subscribe
for Common Stock or convertible securities at less than the current market price
of the Common Stock, or (iii) upon the distribution to holders of the Common
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 shares of Common Stock will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market price of the Common Stock
on the last trading date prior to the date of exercise.
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.
The implementation of the Rights Agreement will not interfere with the
day-to-day operations of the Company. The Rights Agreement provides that the
Company may not enter into any transaction of the sort enumerated in the
"flip-in/flip-over" provisions if, in connection therewith, there are
outstanding securities or there are agreements or arrangements intended to
counteract the protective provisions of the Rights. For example, the Company may
not merge with an acquiring corporation if the acquiring corporation has granted
its shareholders rights to purchase its Common Stock at less than fair market
value upon the triggering of flip-over rights in one of its acquisition targets.
Any of the provisions of the Rights Agreement may be amended by the Board as
long as the Rights are then redeemable. When the Rights are not redeemable, the
provisions of the Rights Agreement may be amended by the Board only in order to
cure any ambiguity, to correct or supplement any provision which may be
inconsistent with any other provision or make changes which do not affect
adversely the interests of holders of Rights; PROVIDED, HOWEVER, that no
amendment may change the redemption price or the expiration date of the Rights,
and amendments after a person or group of affiliated or associated persons
becomes an Acquiring Person or an Adverse Person (other than pursuant to a
Qualifying Tender Offer) may be made only if approved by a majority of the
Independent Directors and at least two thirds of the Board.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to the Company's original Registration
Statement on Form 8-A, filed as of January 8, 1998. A copy of the Rights
Agreement, or Third Amendment to the Rights Agreement is available free of
charge from the Rights Agent. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights
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Agreement and the Third Amendment to the Rights Agreement, which are
incorporated herein by reference.
ITEM 2. EXHIBITS.
4.1 Third Amendment to Rights Agreement, dated as of January 13,
2000, between the Company and American Stock Transfer & Trust
Company.
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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.
January 24, 2000 RAILAMERICA, INC.
By: /s/ Donald D. Redfearn
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Donald D. Redfearn, Chief Administrative
Officer, Executive Vice President and
Secretary
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INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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4.1 Third Amendment to Rights Agreement, dated as of
January 13, 2000, between the Company and American
Stock Transfer & Trust Company.
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EXHIBIT 4.1
THIRD AMENDMENT TO RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as
of the 13th day of January, 2000, by and between RAILAMERICA, INC., a Delaware
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY (the
"Rights Agent").
RECITALS
WHEREAS, on January 6, 1998, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for each share of
common stock, $.001 par value, of the Company outstanding at the close of
business on January 20, 1998; and
WHEREAS, the Company and the Rights Agent entered into a certain Rights
Agreement, dated as of January 6, 1998 as amended September 3, 1998 and April
18, 1999 (the "Rights Agreement"), providing, among other things, for the
issuance of the Rights (all capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Rights Agreement); and
WHEREAS, the Board of Directors of the Company has approved the
amendment of the Rights Agreement as hereinafter set forth, pursuant to a
unanimous written consent dated as of January 13, 2000;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Acquiring Person" set forth in subsection (a) thereof in its
entirety and substituting therefor a new definition of "Acquiring Person" to
read as follows:
"`Acquiring Person' shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of fifteen percent (15%) or more of the shares of
Common Stock the outstanding. Notwithstanding the foregoing, the term
"Acquiring Person" shall not include (i) the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan, (ii) EGS Associates, L.P., a Delaware limited partnership, EGS
Partners L.L.C., a Delaware limited liability company, Bev Partners,
L.P., a Delaware limited partnership, Jonas Partners, L.P., a Delaware
limited partnership, William Ehrman, Frederic Greenberg, Frederick
Ketcher, Jonas Gerstl, James McLaren or
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William Lautman, unless such Persons shall be the Beneficial Owners,
individually or in the aggregate, of thirty percent (30%) or more of
the shares of Common Stock then outstanding, PROVIDED, HOWEVER, that
such percentage shall be reduced to twenty percent (20%) upon the
earlier to occur of (x) the completion of the merger of RailTex, Inc.
with and into a wholly-owned subsidiary of the Company and (y) April
30, 2000, (iii) Barclays Bank PLC and the lenders named in that certain
Senior Secured Loan Facility and Guaranty Agreement (the "Facility")
dated as of April 30, 1999 among Freight Victoria, the Company,
RailAmerica Australia Pty Ltd., Barclays Bank PLC and the lenders named
therein (such lenders collectively with Barclays Bank PLC to be
referred to hereinafter as the "Lenders"), but only with respect to (A)
warrants (the "Warrants") to purchase shares of Common Stock issued by
the Company to the Lenders pursuant to the Facility and pursuant to
that certain Warrant Agreement dated as of April 30, 1999 between the
Company and the Lenders and (B) the shares of Common Stock issuable
upon exercise of the Warrants, it being understood that all other
shares of Common Stock acquired by the Lenders independent of (A) or
(B) above shall be considered for purposes of determining Acquiring
Person status of Lenders; or (iv) any Person who or which, together
with all Affiliates and Associates of such Person, would be an
Acquiring Person solely by reason of a reduction in the number of
issued and outstanding shares of Common Stock of the Company pursuant
to a transaction or series of related transactions approved by a
majority of the Independent Directors, if any, then in office and
approved by a Supermajority Vote; provided, further, however, that in
the event that such Person described in the foregoing clause (iv) does
not become an Acquiring Person by reason of the foregoing clause (iv),
such Person shall nonetheless become an Acquiring Person in the event
such Person thereafter acquires Beneficial Ownership of an additional
one percent (1%) of the Common Stock of the Company, unless such
additional Common Stock ownership results solely from a subsequent
reduction in the number of issued and outstanding shares of Common
Stock of the Company."
2. Except as specifically amended hereby, the Rights Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
3. This Amendment shall be deemed 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.
4. This Amendment may be executed in counterparts and both of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
RAILAMERICA, INC.
By: /s/ Gary O. Marino
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Name: Gary O. Marino
Its: Chairman of the Board, President and
Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Its: Vice President
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