SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K/A
AMENDMENT NO. 1 TO CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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JUNE 17, 1999
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED)
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-12754 43-1659062
(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
1900 GULF STREET
LAMAR, MISSOURI 64759-1899
(Address of principal executive
offices)
(417) 682-3322
(Registrant's telephone number, including area code)
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The undersigned registrant hereby amends the following items, exhibits
or other portions of the Current Report on Form 8-K originally filed by the
registrant with the Securities and Exchange Commission on May 19, 1999, as
set forth below:
ITEM 5. OTHER EVENTS
On May 17, 1999, O'Sullivan Industries Holdings, Inc., a Delaware
corporation ("O'Sullivan"), entered into a definitive merger agreement (the
"Merger Agreement") with OSI Acquisition, Inc., a Delaware corporation
("OSI"). A copy of the Merger Agreement is incorporated by reference.
On June 17, 1999, O'Sullivan and OSI agreed to amend and replace in
its entirety Exhibit 9.7 of the Merger Agreement with Exhibit 9.7 (amended)
with respect to the terms of the Senior Preferred Stock.
A copy of the agreement between O'Sullivan and OSI to amend and
replace Exhibit 9.7 of the Merger Agreement with Exhibit 9.7 (amended) is
attached as Exhibit 2.2.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
The following exhibit is hereby amended and added to the Form 8-K:
2.2 Agreement to amend and replace Exhibit 9.7 of the Merger Agreement
with Exhibit 9.7 (amended).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on behalf of the
undersigned hereunto duly authorized.
Dated: June 18, 1999
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
By: /s/ Rowland H. Geddie, III
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Name: Rowland H. Geddie, III
Title: Vice President,
General Counsel and
Secretary
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EXHIBIT INDEX
Exhibit Description
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2.2 Agreement to amend and replace Exhibit 9.7 of the
Merger Agreement with Exhibit 9.7 (amended).
Exhibit 2.2
AGREEMENT
AGREEMENT, dated as of June 17, 1999, by and between OSI Acquisition, Inc., a
Delaware corporation, and O'Sullivan Industries Holdings, Inc., a Delaware
corporation.
Reference is hereby made to the Agreement and Plan of Merger, as of May 17,
1999, between OSI Acquisition, Inc. and O'Sullivan Industries Holdings,
Inc. (the "Merger Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement.
The undersigned hereby agree that Exhibit 9.7 of the Merger Agreement shall
be and hereby is amended and replaced in its entirety with Exhibit 9.7
(amended) attached hereto.
OSI ACQUISITION, INC. O'SULLIVAN INDUSTRIES
HOLDINGS, INC.
/s/ Stephen F. Edwards /s/ Richard D. Davidson
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By: Stephen F. Edwards By: Richard D. Davidson
Title: President and Director Title: President and Director
<PAGE>
EXHIBIT 9.7 (AMENDED)
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
TERMS OF THE SENIOR PREFERRED STOCK
Certain capitalized terms used herein are defined in Section 5
hereof.
Section 1. Dividends.
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1A. General Obligation. When and as declared by the Corporation's
board of directors and to the extent permitted under the General
Corporation Law of Delaware, the Corporation shall pay preferential
dividends to the holders of the Senior Preferred Stock, par value $1.00 per
share (the "Senior Preferred Stock") as provided in this Section 1. Except
as otherwise provided herein, dividends on each share of the Senior
Preferred Stock (a "Share") shall accrue on a daily basis at the rate of
12% per annum of the sum of the Liquidation Value thereof plus all
accumulated and unpaid dividends thereon, from and including the date of
issuance of such Share to and including the date on which the Liquidation
Value of such Share (plus all accrued, accumulated and unpaid dividends
thereon) is paid. Such dividends shall accrue whether or not they have been
declared and whether or not there are profits, surplus or other funds of
the Corporation legally available for the payment of dividends. The date on
which the Corporation initially issues any Share shall be deemed to be its
"date of issuance" regardless of the number of times transfer of such Share
is made on the stock records maintained by or for the Corporation and
regardless of the number of certificates which may be issued to evidence
such Share.
1B. Dividend Reference Dates. To the extent not paid on June 30
and December 31 of each year, beginning on December 31, 1999 (the "Dividend
Reference Dates"), all dividends which have accrued on each Share
outstanding during the six-month period (or other period in the case of the
initial Dividend Reference Date) ending upon each such Dividend Reference
Date shall be accumulated and shall remain accumulated dividends with
respect to such Share until paid.
1C. Distribution of Partial Dividend Payments. Except as
otherwise provided herein, if at any time the Corporation pays less than
the total amount of dividends then accrued with respect to the Senior
Preferred Stock, such payment shall be distributed ratably among the
holders of the Senior Preferred Stock based upon the number of Shares held
by each such holder.
Section 2. Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, each holder of Senior Preferred Stock shall be
entitled to be paid, before any distribution or payment is made upon any
Junior Securities, an amount in cash equal to the aggregate Liquidation
Value (plus all accrued, accumulated and unpaid dividends) of all Shares
held by such holder, and the holders of Senior Preferred Stock shall not be
entitled to any further payment. If upon any such liquidation, dissolution
or winding up of the Corporation, the Corporation's assets to be
distributed among the holders of the Senior Preferred Stock are
insufficient to permit payment to such holders of the aggregate amount
which they are entitled to be paid, then the entire assets to be
distributed shall be distributed ratably among such holders based upon the
aggregate Liquidation Value (plus all accrued, accumulated and unpaid
dividends) of the Senior Preferred Stock held by each such holder. Neither
the consolidation or merger of the Corporation into or with any other
entity or entities, nor the sale or transfer by the Corporation of all or
any part of its assets, nor the reduction of the capital stock of the
Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation within the meaning of this Section 2.
Section 3. Redemptions.
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3A. Redemption Payment. For each Share which is to be redeemed,
the Corporation shall be obligated to pay to the holder thereof upon
surrender by such holder at the Corporation's principal office of the
certificate representing such Share (the "Redemption Date") an amount in
immediately available funds equal to the Liquidation Value of such Share
(plus all accrued, accumulated and unpaid dividends thereon). If the funds
of the Corporation legally available for redemption of Shares on any
Redemption Date are insufficient to redeem the total number of Shares to be
redeemed on such date, those funds which are legally available shall be
used to redeem the maximum possible number of Shares ratably among the
holders of the Shares to be redeemed based upon the aggregate Liquidation
Value of such Shares (plus all accrued, accumulated and unpaid dividends
thereon) held by each such holder. At any time thereafter when additional
funds of the Corporation are legally available for the redemption of
Shares, such funds shall immediately be used to redeem the balance of the
Shares which the Corporation has become obligated to redeem on any
Redemption Date but that it has not redeemed.
3B. Notice of Redemption. The Corporation shall mail written
notice of each redemption of any Senior Preferred Stock to each record
holder of Senior Preferred Stock not more than 30 nor less than 3 days
prior to the date on which such redemption is to be made. In case fewer
than the total number of Shares represented by any certificate are
redeemed, a new certificate representing the number of unredeemed Shares
shall be issued to the holder thereof without cost to such holder within
three business days after surrender of the certificate representing the
redeemed Shares.
3C. Determination of the Number of Each Holder's Shares to be
Redeemed. The number of Shares of Senior Preferred Stock to be redeemed
from each holder thereof in redemptions hereunder shall be the number of
Shares determined by multiplying the total number of Shares of Senior
Preferred Stock to be redeemed times a fraction, the numerator of which
shall be the total number of Shares of Senior Preferred Stock then held by
such holder and the denominator of which shall be the total number of
Shares of Senior Preferred Stock then outstanding.
3D. Dividends After Redemption. No Share is entitled to any
dividends accruing after the date on which the Liquidation Value of such
Share (plus all accrued, accumulated and unpaid dividends thereon) is paid
in full to the holder thereof. On such date all rights of the holder of
such Share shall cease, and such Share shall not be deemed to be
outstanding.
3E. Redeemed or Otherwise Acquired Shares. Any Shares which are
redeemed or otherwise acquired by the Corporation shall be canceled and
shall not be reissued, sold or transferred.
3F. Other Redemptions or Acquisitions. Neither the Corporation
nor any Subsidiary shall redeem or otherwise acquire any Senior Preferred
Stock, except as expressly authorized herein or pursuant to a purchase
offer made pro rata to all holders of Senior Preferred Stock on the basis
of the number of Shares of Senior Preferred Stock owned by each such
holder. So long as any shares of Senior Preferred Stock remain outstanding,
the Corporation shall not redeem, purchase or otherwise acquire any Junior
Securities; provided that, the Corporation may purchase Junior Securities
from present or former employees pursuant to written contracts with such
employees [parameters of such repurchases to be agreed between OSI
Acquisition, Inc. and O'Sullivan Industries Holdings, Inc.].
3G. Optional Redemptions. The Corporation may, at its option,
redeem at any time or from time to time, from any source of funds legally
available therefor, in whole or in part, the Senior Preferred Stock.
3H. Scheduled Redemptions. The Corporation shall redeem all
outstanding Shares of Senior Preferred Stock on the 12th anniversary of the
date of issuance of such Shares at a price per Share equal to the
Liquidation Value thereof (plus all accrued, accumulated and unpaid
dividends thereon).
3I. Mandatory Redemption. The Corporation shall redeem all
outstanding Shares of Senior Preferred Stock upon the consummation of a
Change in Control at a price per Share equal to the Liquidation Value
thereof (plus all accrued, accumulated and unpaid dividends thereon).
Section 4. Voting Rights. Except as otherwise required by law, the
Senior Preferred Stock shall have no voting rights.
Section 5. Definitions.
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"Change in Control" means any transaction or series of related
transactions as a result of which any Unaffiliated Third Party acquires
more than 50% of the Common Stock outstanding on a fully diluted basis at
the time of such transaction.
"Common Stock" means the Corporation's Common Stock and any
capital stock of any class of the Corporation hereafter authorized which is
not limited to a fixed sum or percentage of par or stated value in respect
to the rights of the holders thereof to participate in dividends or in the
distribution of assets upon any liquidation, dissolution or winding up of
the Corporation.
"Junior Securities" means any of the Corporation's equity
securities other than the Senior Preferred Stock.
"Liquidation Value" of any Share as of any particular date shall
be equal to $1.75.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Redemption Date" is defined in paragraph 3A.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business
entity of which (i) if a corporation, a majority of the total voting power
of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a
combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that person or a
combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a partnership, association
or other business entity if such Person or Persons shall be allocated a
majority of partnership, association or other business entity gains or
losses or shall be or control the managing general partner of such
partnership, association or other business entity.
"Unaffiliated Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of 5% of the
Company's Common Stock on a fully diluted basis (a "5% Owner"), who is not
controlling, controlled by or under common control with any such 5% Owner
and who is not the spouse or descendent (by birth or adoption) of any such
5% Owner or a trust for the benefit of such 5% Owner and/or such other
Persons.
Section 6. Amendment and Waiver. No amendment, modification or waiver
shall be binding or effective with respect to any provision hereof without
the prior written consent of the holders of at least 51% of the Senior
Preferred Stock outstanding at the time.
Section 7. Notices. Except as otherwise expressly provided hereunder,
all notices referred to herein shall be in writing and shall be delivered
by registered or certified mail, return receipt requested and postage
prepaid, or by reputable overnight courier service, charges prepaid, and
shall be deemed to have been given when so mailed or sent (i) to the
Corporation, at its principal executive offices and (ii) to any
stockholder, at such holder's address as it appears in the stock records of
the Corporation (unless otherwise indicated by any such holder).
