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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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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TODHUNTER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 59-1284057
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
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222 LAKEVIEW AVENUE, SUITE 1500
WEST PALM BEACH, FLORIDA 33401
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Name of each Exchange
Title of each class on which each class
to be so registered is to be registered
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COMMON STOCK, $.01 PAR VALUE PER SHARE AMERICAN STOCK EXCHANGE
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If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. /x/
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If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. / /
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Securities Act registration statement file number to which this form
relates: N/A
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Title of each class
To be so registered
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None.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
AUTHORIZED CAPITAL STOCK
Todhunter International, Inc., a Delaware corporation (the "Company"), is
authorized to issue up to 10,000,000 shares of common stock, par value $.01 per
share (the "Common Stock"), and 2,500,000 shares of preferred stock, par value
$.01 per share (the "Preferred Stock"). As of the date of this Registration
Statement, there were 4,949,714 shares of Common Stock issued and outstanding,
and no shares of Preferred Stock outstanding. The following description is
qualified in its entirety by reference to the Amended and Restated Certificate
of Incorporation (the "Certificate of Incorporation") and the Amended and
Restated Bylaws of the Company (the "Bylaws"), copies of which are filed as
exhibits to the Registration Statement that is being filed with the American
Stock Exchange. Pursuant to the rules of the Securities and Exchange Commission
(the "Commission"), copies of these documents are not included as exhibits to
the Registration Statement being filed with the Commission.
COMMON STOCK
Holders of shares of the Common Stock are not entitled to any preemptive
rights. The Common Stock is neither redeemable nor convertible into any other
securities. Upon the liquidation, dissolution or winding up of the Company,
holders of shares of the Common Stock are entitled to share ratably in the net
assets of the Company, after payment in full of all liabilities of the Company
and such amounts, if any, as may be due to holders of any Preferred Stock then
outstanding. All outstanding shares of Common Stock are fully paid and
nonassessable. Holders of shares of the Common Stock have no fixed dividend
rights but are entitled to receive ratably such dividends as may be declared by
the Board of Directors out of funds legally available therefor. Any declaration
of dividends by the Board of Directors is dependent on several factors,
including earnings, capital requirements and financial condition of the Company.
Each holder of Common Stock is entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders, including the
election of directors. Stockholders do not have cumulative voting rights. As a
result, a person or entity controlling the vote of a majority of the outstanding
shares of Common Stock can elect all directors of the Company standing for
election.
At present, the Common Stock is quoted on the Nasdaq National Market. The
Company has submitted an application for listing on the American Stock Exchange.
PREFERRED STOCK
The Board of Directors has the authority, without further action of the
stockholders of the Company, to issue up to an aggregate of 2,500,000 shares of
Preferred Stock in one or more series and to fix or alter the designations,
preferences, rights and any qualifications, limitations or restrictions of the
shares of each such series thereof, including the dividend rights, voting
rights,
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terms of redemption (including sinking fund provisions), redemption price or
prices, liquidation preferences and the number of shares constituting any series
or the designation of such series. The issuance of Preferred Stock may have the
effect of delaying, deferring or preventing a change in control of the Company.
The Company has no plans to issue any Preferred Stock in the foreseeable future.
Shares of the Preferred Stock, when issued and outstanding, may have a
claim on the net earnings of the Company for the payment of such Preferred Stock
dividends as are called for by the terms under which such shares are issued,
prior to the right of the holders of the Common Stock to receive any dividends.
Likewise, in the event of the dissolution or liquidation of the Company, shares
of the Preferred Stock may be entitled to such preference in any distribution of
the net assets of the Company, prior to any distribution to holders of shares of
the Common Stock, as may be provided for by the terms under which such shares of
the Preferred Stock are issued.
1992 EMPLOYEE STOCK OPTION PLAN
On August 11, 1992, the Company adopted the 1992 Employee Stock Option
Plan, as amended to the date hereof (the "Plan"). The Plan authorizes the grant
of options to key employees, (including officers and directors), consultants and
independent contractors of the Company or any subsidiary corporation. Options
granted under the Plan may be either incentive or non-qualified stock options.
Incentive stock options are intended to be qualified as such under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"). A total of
1,400,000 shares of Common Stock have been reserved for issuance under the Plan.
As of the date of this Registration Statement, options to purchase 292,000
shares of Common Stock are outstanding under the Plan. The Plan shall expire on
August 11, 2002, except as to any outstanding options on such date. The Plan
may be amended or terminated at any time, except that certain amendments as set
forth in the Plan may require the approval or ratification of shareholders
within 12 months after approval of the amendment by the Board of Directors.
The Plan provides that for incentive stock options, the exercise price of
such option shall not be less than the greater of (i) the fair market value per
share of Common Stock on the date of such grant, or (ii) for grants of options
prior to October 1, 1995, the public offering price (the "Public Offering
Price") of the Common Stock related to the Company's initial public offering
completed in October 1992, except that in the case of a grant to an employee
owning more than 10% of the total combined voting power of all classes of stock
of the Company or any of its subsidiaries (a "10% Owner"), the exercise price
shall be 110% of the fair market value per share of the Common Stock as of the
date of grant. For non-qualified stock options, the exercise price per shall
not be less than the greater of (i) 85% of the fair market value per share of
Common Stock on the date of grant, or (ii) for grants of options prior to
October 1, 1995, the Public Offering Price. The Plan provides for proportional
adjustment of the number of shares of Common Stock subject to an option and the
exercise price of such shares in the event of a stock dividend, stock split,
recapitalization, reorganization, consolidation, merger or other similar
transaction.
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Options granted under the Plan shall be either fully exercisable on the
date of grant or shall become exercisable thereafter in such installments as the
Board of Directors or a committee thereof may specify. The Plan permits an
option to provide for accelerated vesting; however, for incentive stock options,
such vesting shall comply with the requirements set forth in the Code. Options
shall expire on the date and pursuant to the terms and conditions provided in
the option agreement; provided, however, that such expiration date shall not be
more than (i) 10 years from the date of grant for incentive stock options, (ii)
five years from the date of grant, for grants of incentive stock options to 10%
Owners, and (iii) 10 years and one day from the date of grant, for non-qualified
options.
LIMITATION OF LIABILITY OF DIRECTORS AND INDEMNIFICATION
As permitted by the Delaware General Corporation Law (the "DGCL"), the
Certificate of Incorporation provides that no director shall be liable to the
Company or its stockholders for monetary damages for breach of the director's
fiduciary duty as a director, except in certain limited circumstances. The
Certificate of Incorporation also requires the indemnification of directors and
executive officers to the fullest extent permitted by Section 145 of the
Delaware Law, including circumstances in which indemnification is otherwise
discretionary.
ANTI-TAKEOVER EFFECTS OF PROVISIONS OF THE COMPANY'S CERTIFICATE OF
INCORPORATION
PREFERRED STOCK. The Board of Directors may issue the Preferred Stock and
the remaining authorized but unissued shares of the Common Stock without
stockholder approval. The Preferred Stock may be issued with voting and
conversion rights which could adversely affect the voting power of holders of
the Common Stock. In addition, the authorized but unissued shares of Common
Stock and Preferred Stock may be utilized for a variety of corporate purposes,
including future offerings to raise additional capital, corporate acquisitions
and employee benefit plans. The existence of authorized but unissued and
unreserved Common Stock and Preferred Stock may enable the Board of Directors to
issue shares to persons friendly to current management which could render more
difficult or discourage an attempt to obtain control of the Company by means of
a proxy contest, tender offer, merger or otherwise, and thereby would protect
the continuity of the Company's management. There are presently no agreements
or understandings with respect to the issuance of Preferred Stock, and the Board
of Directors has no present intention to issue any shares of Preferred Stock.
CLASSIFICATION OF THE BOARD OF DIRECTORS AND REMOVAL OF DIRECTORS. The
Certificate of Incorporation provides for the Board of Directors to be divided
into three classes of directors serving staggered three-year terms. As a
result, approximately one-third of the Board of Directors will be elected each
year. The Certificate of Incorporation also provides that a director may be
removed only by the affirmative vote of at least two-thirds of the voting power
of all shares having the right to vote for the election of directors, or the
affirmative vote of both 51% of such voting power and a majority of directors
who were members of the Board of Directors prior to any person becoming
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an interested stockholder under Section 203 of the DGCL, as described below
("disinterested directors"), and that the number of directorships may be
increased only by the Board of Directors.
These provisions, when coupled with the provision of the Certificate of
Incorporation authorizing only the Board of Directors to fill vacant
directorships, will preclude a stockholder from removing incumbent directors
without cause and simultaneously gaining control of the Board of Directors by
filling the vacancies created by such removal with new nominees. The classified
board provisions will also serve to delay or hinder an unwelcome attempt to
obtain control of the Company, as a classified board requires at least two
annual shareholder meetings in order to effect a change in control of the Board
of Directors. Amendment of the provisions of the Certificate of Incorporation
relating to the classified board requires the affirmative vote of the holders of
at least two-thirds of the voting power of all shares then having the right to
vote, or the affirmative vote of both 51% of the voting power of all shares
having the right to vote for the election of directors and a majority of
disinterested directors.
SPECIAL MEETINGS OF STOCKHOLDERS. The Certificate of Incorporation
provides that special meetings of the stockholders of the Company may be called
only by the President, a majority of the members of the Board of Directors
(without regard to vacancies), or the holders of at least 25% of the voting
stock of the Company.
ADVANCE NOTICE REQUIREMENTS FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. The Certificate of Incorporation and the Bylaws provide that
stockholders seeking to bring business before an annual meeting of stockholders,
or to nominate candidates for election as directors at an annual or special
meeting of stockholders, must provide timely notice thereof in writing.
To be timely, a stockholder's notice regarding a proposal to be brought at
the stockholder meeting must be received by the Secretary of the Company as of
the date set forth in the Company's proxy statement relating to the annual
meeting for the preceding year; provided, however, that if no such date is
stated, then such date shall be 120 days in advance of the date (with respect to
the forthcoming annual meeting) that the proxy statement was released to
stockholders in connection with the previous year's annual meeting of
stockholders; and provided further, that if no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than 30
calendar days from the date contemplated at the time of the previous year's
proxy statement, a proposal must be received by the Company no later than the
close of business on the 10th day following the date on which such notice of the
date of the meeting was mailed or made public, whichever first occurs.
For a notice of stockholder nominations of director candidates to be
timely, the notice must be received by the Secretary of the Company not less
than 120 nor more than 180 days prior to any meeting of stockholders called for
the election of directors; provided, however, that if no annual meeting was held
in the previous year or the date of the annual meeting has been changed by more
than thirty (30) calendar days from the date contemplated at the time of the
previous year's proxy statement, a proposal must be received by the Company no
later than the close of business on the
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10th day following the date on which such notice of the date of the meeting was
mailed or made public, whichever first occurs.
The Certificate of Incorporation also specifies certain requirements on the
form and content of such notices. These provisions may preclude stockholders
from bringing matters before the stockholders at an annual or special meeting or
from making nominations for directors at an annual or special meeting.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
As a Delaware corporation, the Company is subject to Section 203 of the
DGCL which generally prevents an "interested stockholder" (defined generally as
a person owning 15% or more of a corporation's outstanding voting stock) from
engaging in a "business combination" (as defined in Section 203) with a
Delaware corporation for a period of three years following the time such person
became an interested stockholder unless (i) before such person became an
interested stockholder, the board of directors of the corporation approved the
transaction in which the interested stockholder became an interested stockholder
or approved the business combination; (ii) upon consummation of the transaction
that resulted in the interested stockholder's becoming an interested
stockholder, the interested stockholder owns at least 85% of the voting stock of
the corporation outstanding at the time the transaction commenced (excluding
stock held by directors who are also officers of the corporation and by certain
employee stock plans); or (iii) at or subsequent to the time when such person
became an interested stockholder, the business combination is approved by the
board of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of 66 2/3% of the
outstanding voting stock of the corporation not owned by the interested
stockholder. The provisions of Section 203 requiring a supermajority vote to
approve certain corporate transactions could enable a minority of the
Company's stockholders to exercise veto power over such transactions and
thereby discourage, delay or hinder the ability of a stockholder to effect a
merger, tender offer or other transaction which may be in the best interests
of, and desired by, the holders of a majority of the issued and outstanding
voting stock of the Company.
TRANSFER AGENT
Continental Stock Transfer & Trust Company, New York, New York, will act as
transfer agent and registrar for the Company's Common Stock.
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ITEM 2. EXHIBITS.
The securities being registered hereby are to be registered on an exchange
on which no other securities of the Company are registered. Therefore, pursuant
to Instruction II to Item 2, all exhibits required by this Item shall be filed
with each copy of this Registration Statement filed with such exchange, and such
exhibits are not filed with, or incorporated by reference in, this Registration
Statement.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
TODHUNTER INTERNATIONAL, INC.
By: /s/ A. Kenneth Pincourt, Jr.
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A. Kenneth Pincourt, Jr.
Chief Executive Officer
Date: September 25, 1997
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