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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 10, 1994
MUELLER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-569 25-0790410
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification No.)
incorporation)
2959 North Rock Road, Wichita, Kansas 67226-1191
(Address of principal executive offices) (Zip Code)
(316) 636-6300
(Registrant's telephone number, including area code)
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Item 5. Other Events.
On November 10, 1994, the Board of Directors of Mueller Industries, Inc.
(the "Company") adopted amendments to the by-laws of the Company implementing
notice procedures for stockholder proposals and for nominations for election
of directors to be considered at annual or special meetings. These procedures
assure that notices will be timely and in writing.
The amended by-laws provide that for business (other than election of
directors) to be properly brought before an annual meeting by a stockholder,
written notice must be delivered to or mailed and received at the principal
executive offices of the Company not less than 60 days nor more than 90 days
prior to the meeting. The stockholder's written notice must contain a brief
description of the proposal and reasons for conducting such business at the
annual meeting, the stockholder's name and address (as they appear on the
corporation's books), the class and number of shares beneficially owned by the
stockholder, and any material interest of the stockholder in such business.
In the event that the date of the annual meeting is advanced by more than 30
days or delayed by more than 60 days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the later of the 60th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of such meeting
is first made.
Stockholder nominations for the election of directors are governed by
similar provisions as to timeliness of written notice. The notice must set
forth as to each proposed nominee information, including name, age, business
address, principal occupation, shares beneficially owned and other information
required in proxy solicitations pursuant to Regulating 14A under the
Securities Exchange Act of 1934. In addition, the nomination notice must
include the nominating stockholder's name and address (as they appear on the
corporation's books) and the class and the number of shares of the corporation
beneficially owned by the stockholder.
In the event that the number of directors to be elected to the Board of
Directors is increased and there is no public announcement naming all of the
nominees for director or specifying the size of the increased Board of
Directors made by the Company at least 70 days prior to the first anniversary
of the preceding year's annual meeting, a stockholder's notice shall be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Company at the principal executive offices of the Company not later than the
close of business on
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the 10th day following the day on which such public announcement is first made
by the Company.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the Company's notice of meeting (a) by or at the direction of the
Board of Directors or (b) by any stockholder who is entitled to vote at the
meeting, who has complied with the notice procedures set forth in the third
preceding paragraph and who was a stockholder of record at the time such
notice was delivered to the Company. Nomination by stockholders of persons
for election to the Board of Directors may be made at such a special meeting
of stockholders if the stockholder's notice shall have been delivered to the
Secretary of the Company at the principal executive offices of the Company not
earlier than the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting
or the 10th day following the day on which public announcement is first made
of the date of the special meeting.
The amended by-laws further provide that in the event the timely written
notice requirements have not been complied with, the chairman of the meeting
is empowered to preclude transaction of the business proposed or disregard the
nomination.
On November 10, 1994, the Board of Directors of the Company declared a
dividend distribution of one preferred share purchase right (a "Right") for
each outstanding share of common stock, par value $.01 per share ("Common
Stock"), of the Company. The dividend is payable to the stockholders of
record on November 21, 1994 (the "Record Date") and with respect to the Common
Stock issued thereafter until the Distribution Date (as defined below) and, in
certain circumstances, with respect to the Common Stock issued after the
Distribution Date. Except as set forth below, each Right, when it becomes
exercisable, entitles the registered holder to purchase from the Company a
unit consisting of one one-thousandth (1/1000th) of a share (a "Unit") of
Series A Junior Participating Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of the Company, at a purchase price of $160 per Unit,
subject to adjustment (the "Purchase Price"). The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement"), dated
as of November 10, 1994, between the Company and Continental Stock Transfer &
Trust Company, as Rights Agent.
Initially, the Rights will be attached to all certificates representing
shares of Common Stock then outstanding, and no separate Rights Certificates
will be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) ten days following a
public announcement that a person or group of affiliated or associated
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persons (an "Acquiring Person") has acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock (the "Stock Acquisition Date"),
or (ii) ten business days (or such later date as may be determined by action
of the Board of Directors, with the concurrence of a majority of the
Continuing Directors (as defined below)) following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of such outstanding shares of Common Stock.
"Continuing Directors" are (i) directors who are not an Acquiring Person, an
associate or affiliate of an Acquiring Person or a representative or nominee
of an Acquiring Person and who are directors of the Company on the date the
Rights Plan is executed, and (ii) those who subsequently become directors who
are not an Acquiring Person, if such person's nomination or election to the
Board of Directors is recommended by a majority of the Continuing Directors.
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with the
Common Stock, (ii) new Common Stock certificates issued after the Record Date
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 certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on November 10, 2004, unless earlier redeemed
by the Company as described below.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("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 alone will
represent the Rights. Except in certain circumstances specified in the Rights
Agreement 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.
Each share of Preferred Stock will be entitled to a minimum preferential
quarterly dividend payment of $10 per share but will be entitled to an
aggregate dividend of 1,000 times the dividend declared per share of Common
Stock. In the event of liquidation, the holders of the Preferred Stock will
be entitled to a minimum preferential liquidation payment of $1,000 per share
but will be entitled to an aggregate payment (after certain payments to the
holders of Common Stock) of 1,000 times the payment made per share of Common
Stock. Each share of Preferred Stock will have 1,000 votes, voting together
with the Common Stock. In the event of any merger, consolidation or other
transaction in which Common Stock is exchanged, each share of Preferred Stock
will be
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entitled to receive 1,000 times the amount received per share of Common Stock.
The Preferred Stock may be redeemed at the option of the Company at any time,
in whole or in part, at a redemption price equal to 1,000 times the current
per share market price of the Common Stock.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of the one one-thousandth interest in a share of
Preferred Stock purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
In the event that any person becomes an Acquiring Person (except pursuant
to an offer for all outstanding shares of Common Stock at a price and on terms
which a majority of each of the Continuing Directors and independent directors
determine to be fair to and otherwise in the best interests of the Company and
its stockholders), the Rights will entitle each holder to receive, upon
exercise of the Right, the number of shares of Common Stock (or in certain
circumstances, cash, property or other securities of the Company) having a
value equal to two times the exercise price of the Right. However, Rights are
not exercisable following the occurrence of any of the events set forth above
until such time as the Rights are no longer redeemable by the Company as set
forth below.
For example, at an exercise price of $160 per Right, following an event
set forth in the preceding paragraph, each Right not owned by an Acquiring
Person (or by certain related parties) would entitle its holder to purchase
$320 worth of Common Stock (or other consideration, as noted above) for $160.
Assuming that the Common Stock had a per share value of $32 at such time, the
holder of each valid Right would be entitled to purchase ten (10) shares of
Common Stock for $160.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction
in which the Company is not the surviving corporation or its Common Stock is
changed or exchanged, or (ii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right (except Rights which
previously have been voided as set forth below) shall thereafter have the
right to receive, upon exercise, common stock of the acquiring company having
a value equal to two times the exercise price of the Right. The events set
forth in this paragraph and in the second preceding paragraph are referred to
as the "Triggering Events."
Notwithstanding the foregoing, following the occurrence of a Triggering
Event, any Rights that are or were at any time beneficially owned by an
Acquiring Person (or any affiliate or associate of an Acquiring Person) will
be null and void and
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nontransferable and any holder of any such Right (including any purported
transferee or subsequent holder) will be unable to exercise or transfer any
such Right.
The Purchase Price payable, and the number of Units of Preferred Stock 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 Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities
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 or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
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 prior to the Distribution Date. After
the Distribution Date, the provisions of the Rights Agreement may be amended
by the Board of Directors (with the concurrence of a majority of the
Continuing Directors, if adopted following the Stock Acquisition Date) in
order to cure any ambiguity, to make changes which do not adversely affect the
interests of holders of Rights (other than an Acquiring Person or its
associates or affiliates) or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as the Rights are not
redeemable.
At any time until ten days (or such later date as determined by action of
the Board of Directors with the concurrence of a majority of the Continuing
Directors) following the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), payable in cash, Common Stock or any other form of
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 Redemption Price.
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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 the acquiring company as set forth above.
Each share of Common Stock outstanding at the close of business on
November 21, 1994 will receive one Right. As long as the Rights are attached
to the Common Stock, the Company will issue one Right for each new share of
Common Stock so that all such shares will have attached Rights. 15,000 shares
of Preferred Stock have been reserved for issuance upon exercise of the
Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on a substantial number of Rights being
acquired. The Rights should not interfere with any merger or other business
combination approved by each of the Board of Directors and the Continuing
Directors since the Board of Directors may (with the concurrence of the
Continuing Directors), at its option, at any time until ten days (or such
later date as may be determined by action of the Board of Directors with the
concurrence of a majority of the Continuing Directors) following the Stock
Acquisition Date redeem all but not less than all the then outstanding Rights
at the Redemption Price.
The Rights Agreement between the Company and the Rights Agent specifying
the terms of the Rights, which includes as Exhibit B the Form of Rights
Certificate, is attached hereto as Exhibit 99.1 and is incorporated herein by
reference. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such Exhibits.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Business Acquired: None
(b) Pro Forma Financial Information: None
(c) Exhibits:
3(ii) Restated By-Laws dated November 10, 1994.
99.1 Rights Agreement, dated as of November 10, 1994, between
Mueller Industries, Inc. and Continental Stock Transfer &
Trust Company, as Rights Agent, which includes the Form of
Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of Mueller
Industries, Inc., as Exhibit A, the Form of Rights
Certificate, as Exhibit B, and the Summary of Rights to
Purchase Preferred Stock, as Exhibit C.
99.2 Press Release issued November 11, 1994.
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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 its behalf by the
undersigned thereunto duly authorized.
MUELLER INDUSTRIES, INC.
Date: November 14, 1994 By: /s/ William H. Hensley
Name: William H. Hensley
Title: Vice President,
General Counsel
and Secretary
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EXHIBIT INDEX
Exhibit
Number Description Page
3(ii) Restated By-Laws dated
November 10, 1994;
99.1 Rights Agreement, dated as of November 10, 1994,
between Mueller Industries, Inc. and Continental Stock
Transfer & Trust Company, as Rights Agent, which
includes the Form of Certificate of Designation,
Preferences and Rights of Series A Junior
Participating Preferred Stock of Mueller Industries,
Inc., as Exhibit A, the Form of Rights Certificate, as
Exhibit B, and the Summary of Rights to Purchase
Preferred Stock, as Exhibit C.
99.2 Press Release issued
November 11, 1994.