FORM 8-A/A
Amendment No. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AAON, INC.
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(Exact name of registrant as specified in its charter)
Nevada 87-0448736
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(State of incorporation) (IRS Employer Identification No.)
2425 South Yukon, Tulsa, Oklahoma 74107
(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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None None
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. [ ]
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. [X]
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase
Series A Preferred Stock
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(Title of class)
(1)
This Amendment No. 1 is being filed to amend and restate Item 1 to the
Registration Statement on Form 8-A, filed February 26, 1999, by AAON, Inc. (the
"Company"), and to include as an exhibit to this Registration Statement the
Amendment No. 1 to the Rights Agreement, dated August 20, 2002 by and between
the Company and Progressive Transfer Company, as Rights Agent (the "Rights
Agent"). Except as amended hereby, there are no other changes to this
Registration Statement.
Item 1. Description of Securities To Be Registered
On February 18, 1999, the Board of Directors of the Company authorized
and declared, effective February 19, 1999, a dividend distribution of one Right
for each outstanding share of the Company's common stock, $.004 par value (the
"Common Stock"), to stockholders of record at the close of business on March 1,
1999. The description and terms of the Rights are set forth in a Rights
Agreement between the Company and the Rights Agent. On August 20, 2002, the
Board of Directors of the Company approved an Amendment No. 1 to Rights
Agreement (as amended, the "Rights Agreement"). Each Right entitles the
registered holder to purchase from the Company one one-thousandth (1/1,000) of a
share of Series A Preferred Stock, par value $.001 per share (the "Preferred
Stock"), at a Purchase Price of $90.00 per one one-thousandth (1/1,000) of a
share, subject to adjustment.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock upon the earlier
of (i) ten (10) business days following a public announcement that a person or
group (other than Norman H. Asbjornson or his affiliates) of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of fifteen percent (15%) or more of the
outstanding shares of Common Stock (the "Stock Acquisition Date"), or (ii) ten
(10) business days (or such later date as the Board of Directors shall
determine) following the commencement of a tender or exchange offer that would
result in a person or group beneficially owning fifteen percent (15%) or more of
such outstanding shares of Common Stock. The date the Rights separate is
referred to as the "Distribution Date."
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued after March 1,
1999 will contain a notation incorporating the Rights Agreement by reference,
and (iii) the surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificates. Pursuant to the Rights Agreement,
the Company reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise of Rights, a number
of Rights be exercised so that only whole shares of Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on August 20, 2012, unless earlier redeemed by
the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates will represent the Rights. Except in connection with shares of
Common Stock issued or sold pursuant to the exercise of stock options under any
employee plan or arrangements, or upon the exercise, conversion or exchange of
securities hereafter issued by the Company, or as otherwise determined by the
Board of Directors, only shares of Common Stock issued prior to the Distribution
Date will be issued with Rights.
(2)
In the event that (i) the Company is the surviving corporation in a
merger or other business combination with an Acquiring Person (or any associate
or affiliate thereof) and its Common Stock remains outstanding and unchanged,
(ii) any person shall acquire beneficial ownership of more than fifteen percent
(15%) of the outstanding shares of Common Stock (except pursuant to (A) certain
consolidations or mergers involving the Company or sales or transfers of the
combined assets, cash flow or earning power of the Company and its subsidiaries
or (B) an offer for all outstanding shares of Common Stock at a price and upon
terms and conditions which the Board of Directors determines to be in the best
interests of the Company and its stockholders), or (iii) there occurs a
reclassification of securities, a recapitalization of the Company or any of
certain business combinations or other transactions (other than certain
consolidations and mergers involving the Company and sales or transfers of the
combined assets, cash flow or earning power of the Company and its subsidiaries)
involving the Company or any of its subsidiaries which has the effect of
increasing by more than one percent (1%) the proportionate share of any class of
the outstanding equity securities of the Company or any of its subsidiaries
beneficially owned by an Acquiring Person (or any associate or affiliate
thereof), each holder of a Right (other than the Acquiring Person and certain
related parties) will thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the Purchase Price of the
Right. Notwithstanding any of the foregoing, following the occurrence of any of
the events described in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. The events described in this paragraph
are referred to as "Flip-in Events."
For example, at a Purchase Price of $100.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties or transferees)
following an event set forth in the preceding paragraph would entitle its holder
to purchase $200.00 worth of Common Stock (or other consideration, as noted
above) for $100.00. Assuming that the Common Stock had a per share market price
of $20.00 at such time, the holder of each valid Right would be entitled to
purchase ten shares of Common Stock for $100.00.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company shall enter into a merger or other business combination
transaction in which the Company is not the surviving corporation, (ii) the
Company is the surviving corporation in a consolidation, merger or similar
transaction pursuant to which all or part of the outstanding shares of Common
Stock are changed into or exchanged for stock or other securities of any other
person or cash or any other property or (iii) more than 50% of the combined
assets, cash flow or earning power of the Company and its subsidiaries is sold
or transferred (in each case other than certain consolidations with, mergers
with and into, or sales of assets, cash flow or earning power by or to
subsidiaries of the Company as specified in the Rights Agreement), each holder
of a Right (except Rights which previously have been voided as set forth above)
shall thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the Purchase Price of the
Right. The events described in this paragraph are referred to as "Flip-over
Events." Flip-in Events and Flip-over Events are referred to collectively as
"Triggering Events."
The Purchase Price payable, the number and kind of shares covered by
each Right and the number of Rights outstanding 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 Stock, (ii) if
holders of the Preferred Stock are granted certain rights, options or warrants
to subscribe for Preferred Stock or securities convertible into Preferred Stock
at less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness,
cash (excluding regular quarterly cash dividends), assets (other than dividends
payable in Preferred Stock) or subscription rights or warrants (other than those
referred to in (ii) immediately above).
(3)
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least one percent (1%) of the
Purchase Price. No fractional shares of Preferred Stock are required to be
issued (other than fractions which are integral multiples of one one-thousandth
(1/1,000) of a share of Preferred Stock) and, in lieu thereof, the Company may
make an adjustment in cash based on the market price of the Preferred Stock on
the trading date immediately prior to the date of exercise.
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group of fifty percent (50%) or more
of the outstanding shares of Common Stock, the Board of Directors of the Company
may, without payment of the Purchase Price by the holder, exchange the Rights
(other than Rights owned by such person or group, which will become void), in
whole or in part, for shares of Common Stock at an exchange ratio of one-half
(1/2) the number of shares of Common Stock (or in certain circumstances
Preferred Stock) for which a Right is exercisable immediately prior to the time
of the Company's decision to exchange the Rights (subject to adjustment).
At any time until the Stock Acquisition Date, the Company may redeem
the Rights in whole, but not in part, at a price of $0.001 per Right (payable in
cash, shares of Common Stock or other consideration deemed appropriate by the
Board of Directors). Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the $0.001 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of an acquiring company as set forth above or in the event that the
Rights are redeemed.
Other than those provisions relating to the principal economic terms of
the Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company at any time during the period in which the
Rights are redeemable. At any time when the Rights are no longer redeemable, the
provisions of the Rights Agreement may be amended by the Board only if such
amendment does not adversely affect the interest of holders of Rights (excluding
the interest of any Acquiring Person); provided, however, that no amendment may
cause the Rights again to become redeemable.
A copy of the Rights Agreement and Amendment No. 1 to the Rights
Agreement, specifying the terms of the Rights, the form of Certificate of
Designation, Preferences and Rights of Series A Preferred Stock and the form of
Rights Certificate are filed herewith as Exhibits and are incorporated herein by
reference. Copies of the Rights Agreement are also available free of charge from
the Rights Agent. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement.
(4)
Item 2. Exhibits
1 Rights Agreement, dated as of February 19, 1999, by and between AAON, Inc.
and Progressive Transfer Company, as Rights Agent, including exhibits
thereto.*
1(a) Amendment No. 1 to Rights Agreement, dated as of August 20, 2002, by and
between AAON, Inc. and Progressive Transfer Company, as Rights Agent.**
2 Form of Certificate of Designation, Preferences and Rights of Series A
Preferred Stock of AAON, Inc. (attached as Exhibit 1 to the Rights
Agreement previously filed as Exhibit 1 hereto).*
3 Form of Rights Certificate (attached as Exhibit 2 to the Rights Agreement
previously filed as Exhibit 1 hereto).*
* Previously filed as an exhibit to AAON, Inc.'s Registration
Statement on Form 8-A, filed February 26, 1999 and incorporated
herein by reference.
** Filed herewith.
(5)
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized.
AAON, INC.
August 20, 2002 By /s/ Norman H. Asbjornson
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Norman H. Asbjornson
President
(6)
Index to Exhibits
1 Rights Agreement, dated as of February 19, 1999, by and between AAON, Inc.
and Progressive Transfer Company, as Rights Agent, including exhibits
thereto.*
1(a) Amendment No. 1 to Rights Agreement, dated as of August 20, 2002, by and
between AAON, Inc. and Progressive Transfer Company, as Rights Agent.**
2 Form of Certificate of Designation, Preferences and Rights of Series A
Preferred Stock of AAON, Inc. (attached as Exhibit 1 to the Rights
Agreement previously filed as Exhibit 1 hereto).*
3 Form of Rights Certificate (attached as Exhibit 2 to the Rights Agreement
previously filed as Exhibit 1 hereto).*
* Previously filed as an exhibit to AAON, Inc.'s Registration Statement on
Form 8-A, filed February 26, 1999 and incorporated herein by reference.
** Filed herewith.
(7)
Exhibit 1(a)
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is made as
of August 20, 2002 between AAON, INC., a Nevada corporation (the "Company"), and
PROGRESSIVE TRANSFER COMPANY (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement dated as of February 19, 1999 (the "Rights Agreement"), relating to
the Rights; and
WHEREAS, on February 18, 1999, the Board of Directors of the Company
authorized and declared, effective February 19, 1999, a dividend distribution of
one Right (as hereinafter defined) for each share of Common Stock (as defined in
the Rights Agreement) of the Company outstanding at the close of business on
March 1, 1999, and has authorized the issuance of one Right for each share of
Common Stock of the Company issued between the Record Date (as defined in the
Rights Agreement) (whether originally issued or delivered from the Company's
treasury) and the Distribution Date (as defined in the Rights Agreement), each
Right initially representing the right to purchase one one-thousandth of a share
of Series A Preferred Stock of the Company having the rights, powers and
preferences set forth in the form of Certificate of Designation, Preferences and
Rights attached to the Rights Agreement, upon the terms and subject to the
conditions set forth in the Rights Agreement (the "Rights"); and
WHEREAS, Section 27 of the Rights Agreement provides, that for so long
as the Rights are redeemable, the Company may, and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of the Rights
Agreement without the approval of any holders of Common Stock or Rights
Certificates (as defined in the Rights Agreement); provided, however, that the
Company may only amend the Rights Agreement to increase the Purchase Price (as
defined in the Rights Agreement) and extend the Final Expiration Date (as
defined in the Rights Agreement) prior to the Stock Acquisition Date (as defined
in the Rights Agreement) or announcement of a tender offer or exchange that
would result in a person being the beneficial owner of greater than 20% of the
Company's Common Stock; and
WHEREAS, neither the Distribution Date, the Stock Acquisition Date or
such a commencement of a tender offer or exchange has occurred; and
WHEREAS, the Company and the Rights Agent desire to amend and restate
the Rights Agreement to (i) increase the Purchase Price from $60.00 to $90.00;
(ii) extend the Final Expiration Date of the Rights to August 20, 2012; and
(iii) reduce certain triggering thresholds for the determination of an Acquiring
Person; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, on August 20,
2002, the Board of Directors of the Company approved an amendment to the Rights
Agreement effective August 20, 2002;
NOW THEREFORE, in consideration of the premises and the agreements set
forth herein and in the Rights Agreement, the parties hereby agree as follows:
Section 1. Purchase Price Increase. Section 7(b) of the Agreement is
hereby amended in its entirety to read as follows:
"The Purchase Price for each one one-thousandth of a share of Preferred
Stock pursuant to the exercise of a Right shall initially be $90.00,
and shall be subject to adjustment from time to time as provided in
Section 11 (Adjustment of Purchase Price; Number and Kind of Shares or
Number of Rights) and Section 13(a) (Consolidation, Merger or Sale or
Transfer of Assets or Earning Power -- Flip-over Event) and shall be
payable in accordance with paragraph (a) of this Section 7."
(8)
Section 2. Extension of Final Expiration Date. Section 1(u) of the
Rights Agreement is hereby amended in its entirety to read as follows:
(u) "Final Expiration Date" shall mean the Close of Business on
August 20, 2012."
Section 3. Triggering Threshold Reduction. Section 1(a),
Section 3(a) and Section 27 of the Rights Agreement are hereby amended by
replacing all references to "20%" with "15%".
Section 4. No Further Amendment. Except as expressly amended by this
Amendment, the Rights Agreement shall remain in full force and effect as the
same was in effect immediately prior to the date of this Amendment.
Section 5. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Nevada and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
Section 6. Counterparts. 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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(9)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
AAON, INC.
Attest:
By:/s/ John B. Johnson By:/s/ Norman H. Asbjornson
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John B. Johnson, Jr., Secretary Norman H. Asbjornson, President
PROGRESSIVE TRANSFER
COMPANY
Attest:
By:/s/ Shirrell W. Hughes By:/s/ Kurtis D. Hughes
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Name: Shirrell W. Hughes Name: Kurtis D. Hughes
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Title: President Title: V.P.
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(10)