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As filed with the Securities and Exchange Commission on June 9, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
SHAW INDUSTRIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
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Georgia 58-1032521
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(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
616 East Walnut Avenue
Dalton, Georgia 30720
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a If this form relates to the registration of a
class of debt securities and is effective upon class of debt securities and is to become
filing pursuant to General Instruction effective simultaneously with the
A(c)(1), please check the following box | | effectiveness of a concurrent registration
registration statement under the Securities
Act of 1933 pursuant to General Instruction
A(c)(2), please check the following box | |
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
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Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Stock, No Par Value The Pacific Stock Exchange
$1.11 Stated Value
Rights to Purchase Series A
Participating Preferred Stock The Pacific Stock Exchange
$.50 Stated Value
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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
COMMON STOCK
Shaw Industries, Inc. (the "Registrant") is authorized by its Amended
and Restated Articles of Incorporation ("Articles of Incorporation") to issue up
to 500,000,000 shares of common stock, without par value ($1.11 stated value per
share) (the "Common Stock"). The holders of shares of Common Stock are entitled
to one vote per share on all matters on which shareholders are entitled or
permitted to vote. Shareholders are not entitled to cumulate their votes in the
election of directors, which means that the holders of a majority of the shares
voting for the election of directors can elect all of the directors then
standing for election if they choose to do so. The holders of shares of Common
Stock have no redemption or conversion rights, are entitled to receive such
dividends, if any, as may be declared from time to time by the Board of
Directors in its discretion from funds legally available therefor, participate
ratably in any distribution of assets to shareholders upon liquidation,
dissolution or winding up of the Registrant, and have no preemptive or other
subscription rights. All of the outstanding shares of Common Stock are fully
paid and non-assessable. The payment of cash dividends is subject to certain
restrictions contained in the Registrant's long-term loan agreements.
PREFERRED STOCK
The Registrant is also authorized by its Articles of Incorporation to
issue up to 250,000 shares of preferred stock, without par value ($.50 stated
value per share) ("Preferred Stock"). The Articles of Incorporation authorize
the Board of Directors to fix, with respect to any series of Preferred Stock,
the preferences, limitations and relative rights of the shares of such series. A
series of Preferred Stock, designated Series A Participating Preferred Stock (as
hereinafter defined), has been established by the Board of Directors, comprised
of 200,000 shares, having the rights, preferences and privileges set forth in
the Registrant's Articles of Incorporation. The shares of Series A Participating
Preferred Stock are reserved for issuance upon certain specified events as
described in the Restated Rights Agreement hereinafter described.
ARTICLES OF INCORPORATION AND BYLAWS
The Articles of Incorporation provide that the Board of Directors of
the Registrant shall be divided into three classes with staggered three-year
terms, with the exact number of directors fixed from time to time in accordance
with the Bylaws of the Registrant. The Bylaws of the Registrant provide that the
Board of Directors shall consist of a number of directors not less than seven
nor more than eleven.
The Articles of Incorporation of the Registrant require that, in
addition to any affirmative vote required by law, the Articles of Incorporation,
or the Bylaws, the affirmative vote of holders of at least 80% of the
outstanding voting stock of the Registrant will be required to approve any
business combination such as a merger, consolidation, liquidation or dissolution
which is
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proposed by or on behalf of a shareholder who beneficially owns 10% or more of
the outstanding voting stock of the Registrant unless such proposal either (i)
satisfies certain fair price and procedural requirements or (ii) receives the
approval of two-thirds of the directors not affiliated with such shareholder. If
either of such conditions is satisfied, the proposed business combination would
be subject to the majority vote requirement otherwise applicable under Georgia
law. This provision could have the effect of delaying, deferring or preventing a
change in control of the Registrant or the consummation of such a business
combination.
The Registrant is subject to the "fair price" and the "business
combination" provisions of the Georgia Business Corporation Code (the "GBCC").
The fair price provisions require that specified business combinations between a
corporation and an "interested shareholder" (generally defined as any
shareholder who owns, beneficially or otherwise, 10% or more of the outstanding
voting stock of such corporation) be approved (i) unanimously by continuing
directors (provided there are at least three continuing directors), or (ii) by a
majority of the votes entitled to be cast by holders of voting shares (excluding
those held by the interested shareholder), after being recommended for approval
by at least two-thirds of the continuing directors. These approval requirements
do not apply if certain "fair price" standards are met or certain other
provisions relating to the conduct of the interested shareholder with respect to
the corporation are satisfied. The business combination provisions prohibit
certain "resident domestic corporations" from entering into a business
combination with any interested shareholder (as defined under the fair price
provisions described above) for a period of five years after the interested
shareholder became an interested shareholder, unless the business combination is
approved by the corporation's board of directors prior to the date the
interested shareholder became an interested shareholder, or the interested
shareholder acquired 90% or more of the outstanding voting stock of the
corporation as part of the transaction in which it became an interested
shareholder, or, after becoming an interested shareholder, the interested
shareholder acquires 90% or more of the outstanding voting stock of the
corporation and the business combination is approved by a majority of the
remaining outstanding voting stock entitled to vote thereon.
The fair price and business combination provisions of the GBCC are not
applicable to a Georgia corporation unless specifically made applicable by such
corporation's bylaws. The Bylaws of the Registrant contain a provision making
the fair price and business combination provisions of the GBCC specifically
applicable to the Registrant. The fair price and business combination provisions
of the GBCC may tend to discourage attempts by third parties to acquire the
Registrant in a hostile takeover effort and may adversely affect the price that
such a potential purchaser would be willing to pay for the stock of the
Registrant. These provisions also may permit a minority of directors and holders
of voting stock of the Registrant to prevent a business combination regardless
of the terms of such proposed transaction.
RIGHTS TO PURCHASE SERIES A PARTICIPATING PREFERRED STOCK
On March 29, 1989, the Board of Directors of the Registrant declared a
dividend distribution of one right (each, a "Right" and collectively, the
"Rights") for each outstanding
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share of Common Stock of the Registrant to shareholders of record at the close
of business on April 10, 1989 (the "Record Date"), pursuant to the Rights
Agreement, dated as of April 10, 1989 (the "Original Rights Agreement"), between
the Registrant and The Citizens and Southern Trust Company (Georgia), N.A., as
rights agent. The Board of Directors of the Registrant has approved and adopted
certain amendments to the terms of the Rights and the Original Rights Agreement
under which the Rights had been issued. The description and terms of the Rights,
as currently in effect, are set forth in the Amended and Restated Rights
Agreement (the "Restated Rights Agreement"), dated as of April 10, 1999, between
the Registrant and Wachovia Bank, N.A., as rights agent. The following is a
summary of the Rights and the terms of the Restated Rights Agreement.
Except as set forth below, each Right, when exercisable, entitles the
registered holder to purchase from the Registrant one one-hundredth of a share
of convertible Preferred Stock, designated as Series A Participating Preferred
Stock, $1.00 stated value per share (the "Series A Participating Preferred
Stock"), of the Registrant at a price of $100.00 (the "Purchase Price"), subject
to adjustment. The Rights are attached to all certificates representing shares
of Common Stock outstanding and no separate Rights certificates have been
distributed. Until the earlier to occur of (i) the close of business on the
tenth business day after a public announcement that, without the prior consent
of the Registrant, a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of securities representing 15% or more of the outstanding shares of
Common Stock of the Registrant or (ii) the close of business on the tenth
business day after (unless such date is extended by the Board of Directors) the
date of the commencement of (or a public announcement of an intention to make) a
tender offer or exchange offer which would result in any person or group and
related persons becoming an Acquiring Person, without the prior consent of the
Registrant (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, by such Common Stock certificates together with this Summary of
Rights. The Restated Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with Common Stock
certificates. Until the Distribution Date (or earlier redemption or expiration
of the Rights), new Common Stock certificates issued upon transfer or new
issuance of shares of Common Stock will contain a notation incorporating the
Restated Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Stock (with or without this Summary of Rights attached)
will also constitute the transfer of the Rights associated with the Common Stock
represented by such certificates. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date, and the separate Rights Certificates
alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on the earliest of (i) April 10, 2009, (ii) consummation of a merger
transaction with a person who or group that acquired Common Stock pursuant to a
Permitted Offer (as defined below), and who or that is offering in the merger
the same price per share and form of consideration paid in the
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Permitted Offer, (iii) consummation of an exchange of all of the exercisable
Rights for shares of Common Stock, or (iv) redemption by the Registrant as
described below.
The Purchase Price payable and the number of shares of Series A
Participating 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 Series A Participating Preferred Stock, (ii) upon
the grant to holders of the Series A Participating Preferred Stock of certain
rights or warrants to subscribe for Series A Participating Preferred Stock,
certain convertible securities or securities having the same or more favorable
rights, privileges and preferences as the Series A Participating Preferred Stock
at less than the current market price of the Series A Participating Preferred
Stock or (iii) upon the distribution to holders of the Series A Participating
Preferred Stock of evidences of indebtedness or assets (excluding regular
quarterly cash dividends out of earnings or retained earnings) or of
subscription rights or warrants (other than those referred to in clause (ii)
above).
In the event that, after the first date of public announcement by the
Registrant or an Acquiring Person that an Acquiring Person has become such, the
Registrant is involved in a merger or other business combination transaction in
which the Common Stock is exchanged or changed, or 50% or more of the
Registrant's assets or earning power is sold (in one transaction or a series of
transactions), proper provision shall be made so that each holder of a Right
(other than such Acquiring Person) shall 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 acquiring company (or, in the event
there is more than one acquiring company, the acquiring company receiving the
greatest portion of the assets or earning power transferred) which at the time
of such transaction would have a market value of two times the exercise price of
the Right (such right being called the "Merger Right"). In the event that a
person becomes the beneficial owner of securities representing 15% or more of
the outstanding shares of Common Stock of the Registrant (unless pursuant to a
tender offer or exchange offer for all outstanding shares of Common Stock at a
price and on terms determined by at least a majority of the members of the Board
of Directors who are not officers of the Registrant to be both adequate and
otherwise in the best interests of the Registrant and its shareholders (a
"Permitted Offer")), proper provision shall be made so that each holder of a
Right (other than any Acquiring Person) will for a 60-day period thereafter have
the right to receive, upon exercise, that number of shares of Common Stock
having a market value of two times the exercise price of the Right, or, if the
Registrant does not have sufficient treasury shares and authorized but unissued
Common Stock, shares of Common Stock, to the extent available, and then (after
all treasury and authorized and unreserved shares of Common Stock have been
issued) cash, reduction of the Purchase Price, common stock equivalents (such as
Series A Participating Preferred Stock or another equity security with at least
the same economic value as the Common Stock), debt securities or other assets
having an aggregate value of two times the exercise price of the Right (such
right being called the "Subscription Right"). The holder of a Right will
continue to have the Merger Right whether or not such holder exercises the
Subscription Right. Upon the occurrence of any of the events giving rise to the
exercisability of the Merger Right or the Subscription Right, any Rights that
are
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or were at any time owned by an Acquiring Person engaging in any of such
transactions or receiving the benefits thereof on or after the time the
Acquiring Person becomes such shall become void insofar as they relate to the
Merger Right or the Subscription Right.
At any time after any person becomes an Acquiring Person but prior to
the acquisition by any person of 50% or more of the outstanding shares of Common
Stock, the Registrant may exchange the Rights (other than any Rights held by the
Acquiring Person) for shares of Common Stock at an exchange ratio of one share
of Common Stock per Right, subject to adjustment.
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractions of shares 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.
At any time prior to the earlier to occur of (i) close of business in
the tenth business day after a person becoming an Acquiring Person or (ii) the
expiration of the Rights, the Registrant may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"), which redemption
shall be effective upon the action of the Board of Directors. Additionally, the
Registrant may thereafter redeem the then outstanding Rights in whole, but not
in part, at the Redemption Price, provided that such redemption is incidental to
a merger or other business combination transaction or series of transactions
involving the Registrant but not involving an Acquiring Person or any person who
was an Acquiring Person or following an event giving rise to, and the expiration
of the exercise period for, the Subscription Right if and for as long as an
Acquiring Person beneficially owns securities representing less than 15% of the
voting power of the Registrant's voting securities. The redemption of Rights
described in the preceding sentence shall be effective only as of such time when
the Subscription Right is not exercisable, and in any event, only after ten
business days, prior notice. Upon the effective date of the 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.
The Series A Participating Preferred Stock purchasable upon exercise of
the Rights will be nonredeemable and junior to any other series of preferred
stock the Registrant may issue (unless otherwise provided in the terms of such
other series of preferred stock). Each share of Series A Participating Preferred
Stock will have a preferential quarterly dividend in an amount equal to 100
times the dividend declared on each share of Common Stock, but in no event less
than $1.00. In the event of liquidation, the holders of Series A Participating
Preferred Stock will receive a preferred liquidation payment equal to the
greater of 100 times the Purchase Price or 100 times the payment made per each
share of Common Stock. Subject to certain adjustments to reflect an increase or
decrease in the number of outstanding shares of Common Stock, each one
one-hundredth of a share of Series A Participating Preferred Stock shall, for a
period of 90 days after issuance, be convertible into one share of Common Stock.
Each share of Series A Participating Preferred Stock will have 100
votes, voting together with the shares of Common Stock. With regard to any
election for the Registrant's Board of
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Directors, however, the maximum number of votes for the election of directors
exercised by holders of shares of preferred stock (including the Series A
Participating Preferred Stock) shall not exceed the number of votes for the
election of directors represented by authorized and issued shares of Common
Stock less one, and the number of votes for the election of directors exercised
by holders of shares of preferred stock (including the Series A Participating
Preferred Stock) shall be reduced as necessary on a pro rata basis to effectuate
this result. If the Registrant fails to pay dividends on the Series A
Participating Preferred Stock for a specified period (a "default period"), the
holders of Series A Participating Preferred Stock shall have the additional
right to elect a number of directors equal to two-thirds of the existing members
of the Board of Directors, rounded down, until such default period expires. The
total number of directors constituting the Board of Directors shall be increased
accordingly for only so long as the default period continues.
In the event of any merger, consolidation or other transaction in which
shares of Common Stock are exchanged, each share of Series A Participating
Preferred Stock will be entitled to receive 100 times the amount and type of
consideration received per share of Common Stock. The rights of the Series A
Participating Preferred Stock as to dividends, liquidation and voting, and in
the event of mergers and consolidations, are protected by customary
anti-dilution provisions. Fractional shares of Series A Participating Preferred
Stock will be issuable; however, the Registrant may elect to distribute
depositary receipts in lieu of such fractional shares. In lieu of fractional
shares other than fractions that are multiples of one one-hundredth of a share,
an adjustment in cash will be made based on the market price of the Series A
Participating Preferred 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 shareholder of the Registrant, including, without limitation, the
right to vote or to receive dividends.
A copy of the Restated Rights Agreement is attached hereto as Exhibit
4.2 and is incorporated herein by reference. The foregoing discussion does not
purport to be complete and is qualified in its entirety by reference to the
Restated Rights Agreement.
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ITEM 2. EXHIBITS
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EXHIBIT NUMBER DESCRIPTION
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3.1 Amended and Restated Articles of Incorporation.
[Incorporated herein by reference to Exhibit 3(a) to the
Registrant's Registration Statement filed with the
Securities and Exchange Commission on December 28, 1993
(File No. 33-51719).]
3.2 Bylaws, as amended. [Incorporated herein by reference to
Exhibit 3.1 to the Registrant's Current Report on Form
8-K filed with the Securities and Exchange Commission on
April 6, 1999 (File No. 1-6853).]
4.1 Specimen Common Stock Certificate of the Registrant.
[Incorporated herein by reference to Exhibit 2 to the
Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on May 12,
1989 (File No. 1-6853).]
4.2 Form of Amended and Restated Rights Agreement, dated as
of April 10, 1999, between the Registrant and Wachovia
Bank, N.A., as rights agent. [Incorporated herein by
reference to Exhibit 4.1 to the Registrant's Current
Report on Form 8-K filed with the Securities and
Exchange Commission on April 6, 1999 (File No. 1-6853).]
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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.
SHAW INDUSTRIES, INC.
(Registrant)
By: /s/ Bennie M. Laughter
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Bennie M. Laughter
Vice President, Secretary and
General Counsel
Dated: June 7, 1999
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