freds8a12b101408.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
-------------
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
FRED'S,
INC.
(Exact
name of registrant as specified in its charter)
|
Tennessee
|
62-0634010
|
|
(State
of incorporation)
|
(IRS
Employer Identification No.)
|
|
4300
New Getwell Road
|
|
|
Memphis,
Tennessee
|
38118
|
|
(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
|
|
Preferred
Share Purchase Rights
|
Nasdaq
Stock Market
|
Securities
to be registered pursuant to Section 12(g) of the Act:
None
(Title of
Class)
Item 1.
Description of Securities To Be Registered.
The Board of Directors of
Fred's, Inc. (the "Company") declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of common
stock, no par value per share (the "Common Shares"), of the Company.
Thedividend is payable on October 12, 2008 (the "Record Date"), to the
stockholders of record on that date. The specific terms of the Rights
are contained in the Rights Agreement, dated as of October 10, 2008, by and
between the Company and Regions Financial Corporation, as Rights Agent (the
“Rights Agreement”).
The Board of Directors has adopted this
Rights Agreement to protect stockholders from coercive or otherwise unfair
takeover tactics. In general terms, it works by imposing a significant penalty
upon any person or group which acquires 15% or more of our outstanding shares of
common stock without the approval of the Board, with exceptions for the Company,
and its affiliates. The Rights Agreement should not interfere with any merger or
other business combination approved by our Board.
Following is a summary of the terms of
the Rights Agreement. Please note, however, that this description is only a
summary, and is not complete, and should be read together with the entire Rights
Agreement, which is attached as Exhibit 4.1 hereto and incorporated by reference
herein.
The
Rights.
The Board
authorized the issuance of a Right with respect to each outstanding share of
common stock on October 12, 2008. The Rights will initially trade with, and will
be inseparable from, the shares of common stock. The Rights are evidenced only
by certificates that represent shares of common stock, or in the case of
uncertificated shares, the book-entry records representing shares of common
stock. New Rights will accompany any new shares of common stock we issue after
October 12, 2008 until the Distribution Date described below.
Exercise
Price.
Each
Right will allow its holder to purchase from the Company one one-hundredth of a
share of Series A Junior Participating Preferred Stock (“Preferred Share”) for
$100.00, once the Rights become exercisable. This portion of a Preferred Share
will give the stockholder approximately the same dividend, voting, and
liquidation rights as would one share of common stock. Prior to exercise, the
Right does not give its holder any dividend, voting, or liquidation
rights.
Exercisability.
The
Rights will not be exercisable until
• 10
days after the public announcement that a person or group has become an
“Acquiring Person” by obtaining beneficial ownership of 15% or more of the
Company’s shares of common stock, or, if earlier,
• 10
business days (or a later date determined by the Board before any person or
group becomes an Acquiring Person) after a person or group begins a tender or
exchange offer which, if completed, would result in that person or group
becoming an Acquiring Person.
The date
when the Rights become exercisable is referred to herein as the “Distribution
Date.” Until that date, the common stock certificates, or in the case of
uncertificated shares, the book-entry records evidencing shares of common stock,
will also evidence the Rights, and any transfer of shares of common stock will
constitute a transfer of Rights. After that date, the Rights will separate from
the shares of common stock and be evidenced by book-entry credits or by Rights
certificates that we will mail to all eligible holders of shares of common
stock. Any Rights held by an Acquiring Person are null and void and may not be
exercised.
The Board
of Directors may reduce the threshold at which a person or group becomes an
Acquiring Person from 15% to not less than 10% of the outstanding shares of
common stock.
Exceptions
to the Definition of “Acquiring Person.”
If the
Company repurchases some of its own shares of common stock and this causes a
person or group’s holdings to constitute 15% or more of the remaining
outstanding shares of common stock, that person or group will not be an
Acquiring Person so long as it does not make any further acquisition of the
Company’s shares of common stock. Finally, if a person or group acquires 15% or
more of the Company’s shares of common stock inadvertently or as a result of
third parties exercising contractual rights that exist as of October 10, 2008
(and without acquiring by other means 1% or more of the Company’s shares of
common stock since October 10, 2008), and that person or group sells enough
common stock to reduce its holdings below 15% of the Company’s common stock as
promptly as practicable (which, in the contractual rights case, shall not be
longer than 60 days), such person or group will not be an Acquiring
Person.
Consequences
of a Person or Group Becoming an Acquiring Person.
• Flip
In. If a person or group becomes an Acquiring Person, all holders of Rights
except the Acquiring Person will 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.
• Flip
Over. If our Company is later acquired in a merger or similar transaction after
the Rights Distribution Date, all holders of Rights except the Acquiring Person
will have the right to receive upon exercise at the then current exercise price,
that number of shares of common stock of the acquiring company which at the time
of such transaction will have a market value of two times the exercise price of
the Right.
Preferred
Share Provisions.
Each one
one-hundredth of a Preferred Share, if issued:
• will
not be redeemable.
• will
entitle holders to minimum preferential quarterly dividend payments of $0.01,
but will entitle holders to an aggregate dividend equal to the dividend declared
per share of common stock.
• will
entitle holders upon liquidation to a minimum preferential liquidation payment
of $1 per share, but if greater than $1 per share, an aggregate payment equal to
the payment made per share of common stock.
• will
have 1 vote.
• if
shares of our common stock are exchanged via merger, consolidation, or a similar
transaction, will entitle holders to a per share payment equal to the payment
made on one share of common stock.
The value
of one one-hundredth interest in a Preferred Share should approximate the value
of one share of common stock.
Expiration.
The
Rights will expire on October 12, 2018.
Redemption.
The Board
of Directors may redeem the Rights for $0.01 per Right at any time before any
person or group becomes an Acquiring Person. If the Board redeems any Rights, it
must redeem all of the Rights. Once the Rights are redeemed, the only right of
the holders of Rights will be to receive the redemption price of $0.01 per
Right. The redemption price will be adjusted if the Company has a stock split or
stock dividends of shares of common stock.
Exchange.
After a
person or group becomes an Acquiring Person, but before an Acquiring Person owns
50% or more of our outstanding shares of common stock, the Board of Directors
may extinguish the Rights by exchanging one share of common stock or an
equivalent security for each Right, other than Rights held by the Acquiring
Person.
Anti-Dilution
Provisions.
The Board
of Directors may adjust the purchase price of the Preferred Shares, the number
of Preferred Shares issuable and the number of outstanding Rights to prevent
dilution that may occur from a stock dividend, a stock split, a reclassification
of the Preferred Shares or shares of common stock. No adjustments to the
Exercise Price of less than 1% will be made.
Amendments.
The terms
of the Rights Agreement may be amended by the Board of Directors without the
consent of the holders of the Rights. However, the Board may not amend the
Rights Agreement to lower the threshold at which a person or group becomes an
Acquiring Person to below 10% of our outstanding shares of common stock. In
addition, the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that such person
or group already owns. After a person or group becomes an Acquiring Person, the
Board may not amend the agreement in a way that adversely affects holders of the
Rights.
Item
2. Exhibits.
3.1 Articles
of Amendment setting forth the designation and amount of Series
A preferred stock.
4.1 Rights Agreement,
dated as of October 10, 2008, between Fred's, Inc. and
Regions Bank, (incorporated herein by reference to Exhibit
4.1 to the Company’s Current Report on
Form 8-K, filed with the Securities and Exchange
Commission on October 10, 2008).
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, thereunto
duly authorized.
Dated: October
17, 2008.
FRED'S, INC.
By: /s/ Charles
Vail
Charles
Vail, Secretary
EXHIBIT
LIST
3.1 Articles
of Amendment setting forth the designation and amount of Series A preferred
stock.
4.1 Rights Agreement,
dated as of October 10, 2008, between Fred's, Inc. and Regions Bank,
(incorporated hereinby reference to Exhibit 4.1 to the Company’s Current Report
on
Form 8-K, filed with the Securities and Exchange Commission on October 10,
2008).