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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
(Amendment No. 2)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Gryphon Holdings Inc.
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(Exact name of registrant as specified in its charter)
Delaware 13-3287060
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(State or Other Jurisdiction (IRS Employer
of Incorporation) Identification No.)
30 Wall Street
New York, New York 10005
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(Address of Principal Executive Offices) (zip code)
Securities to be registered pursuant to Section 12(b) 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 National Market System
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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The undersigned registration hereby amends and restates,
effective as of July 28, 1998, Item 1 of its Registration Statement on Form 8-A
dated June 20, 1995, as previously amended as of July 28, 1998 as follows:
Item 1. Description of Securities To Be Registered
On June 5, 1995, the Board of Directors of Gryphon Holdings
Inc. (the "Company") authorized and declared a dividend of one preferred share
purchase right (a "Right") for each outstanding share of Common Stock, par value
$.01 per share (the "Common Shares") of the Company. The dividend was payable on
June 19, 1995 to the shareholders of record on June 5, 1995 (the "Record Date").
Each Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Junior Participating Cumulative Preferred Stock, par
value $0.01 per share ("Preferred Shares") of the Company at a Purchase Price
(the "Purchase Price") of $50.00, subject to adjustment in certain circumstances
(as defined below). The description and terms of the Rights are set forth in the
Rights Agreement (the "Rights Agreement") dated as of June 5, 1995, as amended
on July 28, 1998 and as further amended on October 22, 1998, between the Company
and State Street Bank and Trust Company, as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Share
certificates representing shares then outstanding, and no separate certificates
representing the Rights ("Right Certificates") will be distributed. The Rights
will separate from the Common Shares and a "Distribution Date" 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 beneficial ownership of 11.8% or more of the outstanding Common Shares
(the "Share Acquisition Date"), or (ii) ten business days (or such specified or
unspecified date as may be determined by action of the Board of Directors of the
Company) following the commencement or announcement of the intent to commence a
tender offer or exchange offer that would result in the Acquiring Person having
Beneficial Ownership of the percentage of outstanding Common Shares equal to or
greater than 11.8% of the outstanding Common Shares. Notwithstanding the
foregoing, an Acquiring Person does not include (A) the Company or any
subsidiary of the Company, (B) any employee benefit plan (including, but not
limited to, any employee stock ownership plan) of the Company or any Subsidiary
of the Company or any Person organized, appointed or established by the Company
or such Subsidiary as a fiduciary for or pursuant to the terms of any such
employee benefit plan or (C) any Person who would otherwise be an "Acquiring
Person" but for the good faith determination by the Board of Directors of the
Company that such Person has become an "Acquiring Person" inadvertently,
provided that such Person together with its Affiliates and Associates divest
themselves as promptly as practicable of beneficial ownership of a sufficient
number of Common Shares so that such Person together with its Affiliates and
Associates beneficially own less than 11.8% of the Common Shares then
outstanding.
The Rights Agreement provides that, until the Distribution
Date, (i) the Rights will be transferred with and only with the Common Shares,
(ii) new Common Share certificates issued after the Record Date but prior to the
Distribution Date will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any of the Common Shares will
also constitute the transfer of the Rights associated with the Common Shares
represented by such certificates.
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As soon as practicable following the Distribution Date,
separate certificates evidencing the Right Certificates will be mailed to
holders of record of Common Shares as of the close of business day on the
Distribution Date, and thereafter the Rights will be evidenced solely by such
Right Certificates.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on June 5, 2005 (the "Final Expiration Date"), unless the
Rights are earlier redeemed or exchanged by the Company as described below.
The Purchase Price payable, and the number of Preferred Shares
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 Shares, (ii) upon the grant to holders of Preferred Shares of certain
rights or warrants to subscribe for Preferred Shares or convertible securities
at less than the current market price of Preferred Shares, or (iii) in case the
Company shall fix a record date to distribute to all holders of the Preferred
Shares evidences of indebtedness or assets (other than a regular periodic cash
dividend or dividends payable in Preferred Shares) or subscription rights or
warrants (other than those referred to above). The number of Rights and number
of Preferred Shares issuable upon the exercise of each Right are also subject to
adjustment in the event of a stock split, combination or stock dividend on the
Common Shares.
In the event that, after the Share Acquisition Date, (a) the
Company shall merge with and into any Acquiring Person or any affiliate or
associate thereof or any other person in which such Acquiring Person, affiliate
or associate has an interest or any person acting on behalf of or in concert
with such Acquiring Person, affiliate or associate (an "Interested Stockholder")
or, if in such merger all holders of Common Shares (other than the Interested
Stockholder) are not treated alike, with any other person (b) the Company shall
consolidate with or merge with any Interested Stockholder or, if in such merger
or consolidation all holders of Common Shares (other than the Interested
Stockholder) are not treated alike, with any other Person, and the Company shall
be the continuing or surviving corporation of such consolidation, or (c) the
Company shall sell or otherwise transfer in a merger or other business
combination transaction, more than 50% of its assets, cash flow or earning power
to another person, the Rights Agreement provides that each Right holder shall be
entitled 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 which at the time of such transaction would have a market value (as
defined in the Rights Agreement) equal to twice the exercise price of the Right
("Flip-Over" Events).
In the event that any person or group becomes an Acquiring
Person, proper provision shall be made so that each holder of a Right, other
than rights beneficially owned by the Acquiring Person (which will thereafter be
void), will thereafter have a right to receive, upon exercise thereof that
number of Common Shares having a market value of two times the exercise price of
the Right ("Flip-In" Events).
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From and after the time a person becomes an Acquiring Person
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by an Acquiring Person (or an affiliate,
associate or transferee thereof) will be null and void.
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 Preferred Shares will be issued and, in
lieu thereof, an adjustment will be made based on the market price of the
Preferred Shares on the last trading date prior to the date of exercise.
At any time prior to the acquisition by a person or group of
affiliated or associated persons of Beneficial Ownership of an amount of
outstanding Common Shares equal to the Acquiring Person Percentage, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.001 per Right (the "Redemption Price"), payable in cash, Common
Shares or any other form of consideration deemed appropriate by the Board of
Directors. The redemption of the Rights may be effective at such time, on such
basis and with such conditions as the Board of Directors in its sole discretion
may establish. Immediately upon redemption of the Rights, the Rights will
terminate and the only privilege of the Rights holders will be to receive the
$.001 redemption price. The date on which Rights are redeemed is referred to
herein as the "Redemption Date."
At any time after the acquisition by a person or group of
affiliated or associated persons of Beneficial Ownership an amount of
outstanding Common Shares equal to the Acquiring Person Percentage, the Board of
Directors of the Company may exchange the Rights (other than Rights owned by
such person or group which have become void), in whole or in part, at an
exchange ratio of one Common Share per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any person together with all
affiliates and associates of such person, becomes the beneficial owner of 50% or
more of the Common Shares then outstanding.
Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such Right shall be
to receive the number of Common Shares equal to the number of such Rights held
by such holder multiplied by the Exchange Ratio. In connection with this
exchange provision, the Company shall not be required to issue fractions of
Common Shares or certificates evidencing fractional Common Shares and, in lieu
thereof, an adjustment will be made based on the market price of the Preferred
Shares on the last trading day 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 Company, other than rights resulting from
such holder's ownership of Common Shares, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights will
not be taxable to shareholders or to the Company, shareholders may, depending
upon the circumstances, recognize taxable income in the event that the Rights
become
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exercisable for Common Shares (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
The Rights and the Rights Agreement may be amended in any
respect whatsoever (including, without limitation, any extension of the period
in which the Rights may be redeemed) at any time prior to such time any person
becomes an Acquiring Person, without the approval of the holders of the Rights.
After such time, amendments may only be made to (i) cure any ambiguity, (ii) to
correct or supplement any provision contained in the Rights Agreement which may
be defective or inconsistent with any other provision in the Rights Agreement,
or (iii) make any amendments or supplements which the Company and the Rights
Agent may deem necessary or desirable which do not adversely affect the
interests of the holders of the Rights (other than the Acquiring Person or an
affiliate or associate thereof).
A copy of the Rights Agreement is being filed herewith as
Exhibit 4.1, a copy of the first amendment to the Rights Agreement is being
filed herewith as Exhibit 4.2 and a copy of the second amendment to the Rights
Agreement is being filed herewith as Exhibit 4.3. A copy of the Rights Agreement
and the amendment thereto is available free of charge from the Company. This
summary description of the Rights Agreement does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement, as amended,
which is hereby incorporated by reference.
Item 2. Exhibits
4.1 Rights Agreement, dated as of June 5, 1995, between
Gryphon Holdings Inc. and State Street Bank and Trust
Company (incorporated by reference to the Company's
Registration Statement on Form 8-A dated June 20,
1995).
4.2 First Amendment, dated as of July 28, 1998, to the
Rights Agreement, dated as of June 5, 1995, between
Gryphon Holdings Inc. and State Street Bank and Trust
Company, as Rights Agent, as amended (incorporated by
reference to Amendment No. 1 to the Company's
Registration Statement on Form 8-A/A filed with the
Securities and Exchange Commission on August 7,
1998).
4.3 Second Amendment, dated as of October 22, 1998, to
the Rights Agreement, dated as of June 5, 1995,
between Gryphon Holdings Inc. and State Street Bank
and Trust Company, as Rights Agent, as amended.
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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.
Gryphon Holdings Inc.
By: /s/ Stephen A. Crane
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Name: Stephen A. Crane
Title: President and Chief
Executive Officer
Dated: October 29, 1998
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1. Rights Agreement, dated as of June 5, 1995, between Gryphon
Holdings Inc. and State Street Bank and Trust Company
(incorporated by reference to the Company's Registration
Statement on Form 8-A dated June 20, 1995).
4.2. First Amendment, dated as of July 28, 1998, to the Rights
Agreement, dated as of June 5, 1995, between Gryphon Holdings
Inc. and State Street Bank and Trust Company, as Rights Agent,
as amended (incorporated by reference to Amendment No. 1 to
the Company's Registration Statement on Form 8-A/A filed with
the Securities and Exchange Commission on August 7, 1998).
4.3 Second Amendment, dated as of October 22, 1998, to the Rights
Agreement, dated as of June 5, 1995, between Gryphon Holdings
Inc. and State Street Bank and Trust Company, as Rights Agent,
as amended.
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Exhibit 4.3
AMENDMENT
SECOND AMENDMENT, dated as of October 22, 1998, to the Rights
Agreement, dated as of June 5, 1995 (the "Rights Agreement"), between Gryphon
Holdings, Inc. (the "Company") and State Street Bank and Trust Company, as
Rights Agent (the "Rights Agent"), as amended.
WHEREAS, the parties hereto are parties to the Rights
Agreement (capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Rights Agreement, as amended);
WHEREAS, on July 28, 1998, pursuant to resolutions duly and
validly adopted by the Board of Directors of the Company, the parties entered
into the First Amendment to the Rights Agreement to, among other things, lower
the percentage threshold at which a Beneficial Owner of Common Shares became an
Acquiring Person;
WHEREAS, the definition of "Acquiring Person" as amended by
the First Amendment contained a provision which was ambiguous and did not
clearly reflect the intention of the Company's Board of Directors; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Board of Directors deems it desirable and in the best interests of the Company
and its shareholders to clarify the ambiguity and, in furtherance thereof, the
parties hereto desire to amend the Rights Agreement as provided herein and to
give effect to such amendment as of July 28, 1998.
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth herein and in the Rights Agreement, the parties hereto
agree as follows:
1. The definition of "Acquiring Person" as set forth in
Section 1(a) of the Rights Agreement is hereby amended to read in its entirety
as follows:
"(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of
11.8% or more of the Common Shares then outstanding, but shall not
include (i) the Company or any Subsidiary (as such term is hereinafter
defined) of the Company, (ii) any employee benefit plan (including, but
not limited to, any employee stock ownership plan) of the Company or
any Subsidiary of the Company or any Person organized, appointed or
established by the Company or such Subsidiary as a fiduciary for or
pursuant to the terms of any such employee benefit plan or (iii) any
Person who would otherwise be an "Acquiring Person" but for the good
faith determination by the Board of Directors of the Company that such
Person has become an "Acquiring Person" inadvertently, provided that
such Person together with its Affiliates and Associates divest
themselves as promptly as practicable of beneficial ownership of a
sufficient number of Common Shares so that such Person together with
its
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Affiliates and Associates beneficially own less than 11.8% of the
Common Shares then outstanding. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as a result of an acquisition
of Common Shares by the Company which, by reducing the number of Common
Shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 11.8% or more of the Common Shares
then outstanding, provided, however, that if a Person, together with
its Affiliates and Associates, shall become the Beneficial Owner of
11.8% or more of the Common Shares then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares
other than as a direct or indirect result of any corporate action taken
by the Company, then such Person shall be deemed to be an "Acquiring
Person."
2. The first sentence of clause (a) of Section 3 of the Rights
Agreement is hereby amended to read in its entirety as follows:
"(a) Until the earlier of the Close of Business on (i) the tenth
Business Day after the Shares Acquisition Date or (ii) the tenth
Business Day, or such specified or unspecified later date as may be
determined by action of the Board of Directors of the Company, after
the date of the commencement of (as determined by reference to Rule
l4d-2(a), as now in effect under the Exchange Act), or first public
announcement of the intent of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan, including, but
not limited to, an employee stock ownership plan, of the Company or of
any Subsidiary of the Company, or any Person organized, appointed or
established by the Company or such Subsidiary as a fiduciary pursuant
to the terms of any such employee benefit plan) to commence (which
intention to commence remains in effect for five Business Days after
such announcement), a tender or exchange offer for an amount of Common
Shares of the Company which, together with the Common Shares already
beneficially owned by such Person, constitutes 11.8% or more of the
Common Shares then outstanding (including any such date which is after
the date of this Agreement and prior to the issuance of the Rights; the
earlier of such dates described in clauses (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this Section
3) by the certificates for Common Shares registered in the names of the
holders thereof (which certificates for Common Shares shall also be
deemed to be Right Certificates) and not by separate Right
Certificates, and (y) the rights to receive Right Certificates will be
transferable only in connection with the transfer of Common Shares."
3. The foregoing amendments to Section 1(a) and 3(a) of the
Rights Agreement are, and shall be deemed for all purposes to have been,
effective on and after July 28, 1998 as if this Second Amendment were executed
and delivered as of such date.
4. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts to be
made and performed entirely within such State.
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5. Except as expressly amended hereby, the Rights Agreement,
as previously amended, shall continue in full force and effect in accordance
with the provisions thereof.
6. 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.
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IN WITNESS WHEREOF, the Company and the Rights Agent have
executed this Amendment as of the date first above written.
GRYPHON HOLDINGS, INC.
By: ____________________________________
Stephen A. Crane
President and CEO
ATTEST:
_______________________
STATE STREET BANK AND
TRUST COMPANY
By: ____________________________________
ATTEST:
_______________________
