SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TOSCO CORPORATION
(Exact name of the Registrant as specified in its charter)
NEVADA 95-1865716
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(Address of principal executive offices) (Zip Code)
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), please check the following box. [ X ]
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), please check the following box. [ ]
Securities Act registration statement file number to which this form relates, if
applicable: __________
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 Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On November 19, 1998, the Board of Directors of Tosco Corporation (the
"Company") declared a dividend of one Right for each outstanding share of the
Company's Common Stock, par value $.75 per share (the "Common Stock"), to
stockholders of record at the close of business on December 7, 1998 (the "Record
Date"). Each Right entitles the registered holder to purchase from the Company a
unit consisting of one one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share (the "Preferred Stock"), at a
Purchase Price of $90.00 per unit of one one-hundredth of a share, subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and BankBoston N.A., as
Rights Agent.
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
and a Distribution Date will occur upon the earliest of (i) 10 days following a
public announcement that a person or group of affiliated or associated persons
(other than those who report ownership on Schedule 13G under the Securities
Exchange Act of 1934) (an "Acquiring Person") has acquired, or obtained the
right to acquire, beneficial ownership of 15% or more of the shares of Common
Stock then outstanding1 (the "Stock Acquisition Date"), (ii) 10 business days
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, or (iii) 10 business days following the date the Board of
Directors declares a person to be an "Adverse Person," upon a determination by
the Board that such person, alone or together with his affiliates or associates,
is or has become the beneficial owner of 10% or more of the shares of Common
Stock outstanding, and upon a determination by the Board of Directors of the
Company, after reasonable inquiry and investigation, including consultation with
such persons as such directors shall deem appropriate, that (a) such beneficial
ownership by such person is intended to cause the Company to repurchase the
shares of Common Stock beneficially owned by such person or to cause pressure on
the Company to take action or enter into a transaction or series of transactions
intended to provide such person with short-term financial gain under
circumstances where the Board of Directors determines that the best long-term
interests of the Company and its stockholders would not be served by taking such
action or entering into such transactions or series of transactions at that
time, or (b) such beneficial ownership is causing or reasonably likely to cause
a material adverse impact (including, but not limited to, impairment of
relationships with customers or impairment of the Company's ability to maintain
its competitive position) on the business, financial condition, competitive
position or prospects of the Company.
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1 Under the Rights Agreement, for purposes of calculating percentages of
Common Stock outstanding, shares of Common Stock outstanding shall
include all shares of Common Stock deemed to be beneficially owned by a
Person and its affiliates and associates, even if not actually then
outstanding.
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 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 December 6, 2008 (the "Final Expiration
Date"), 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 alone will represent the Rights. Except (i) with respect to certain
shares of Common Stock issued or sold pursuant to the exercise of stock options
or under any employee benefit plan or compensation arrangement, or upon the
exercise, conversion or exchange of certain securities of the Company, or (ii)
as otherwise determined by the Board of Directors, only shares of Common Stock
issued prior to the Distribution Date will be issued with Rights.
In the event that (i) a person or group becomes the beneficial owner
of 15% or more of the then outstanding shares of Common Stock (except pursuant
to a tender offer or an exchange offer for all outstanding shares of Common
Stock at a price and on terms which a majority of the Directors who are not
officers of the Company and who are not representatives, nominees, affiliates or
associates of such person, with the concurrence of a majority of the Continuing
Directors (as defined below), after receiving advice from one or more nationally
recognized investment banking firms, determines to be fair to and otherwise in
the best interests of the Company and its stockholders (a "Qualifying Offer")),
or (ii) the Board of Directors declares that a person is an Adverse Person (each
such event, a "Flip-in Event"), each holder of a Right will thereafter have the
right to receive, upon exercise of such Right, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a value
(based on a formula set forth in the Rights Agreement) equal to two times the
Purchase Price of the Right. Notwithstanding any of the foregoing, following the
occurrence of any Flip-in Event, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person or an Adverse Person (or by certain related parties) will be
null and void. However, Rights are not exercisable following the occurrence of
any Flip-in Event until such time as the Rights are no longer redeemable by the
Company as set forth below.
For example, at a Purchase Price of $90.00 per Right, each Right not
owned by an Acquiring Person or an Adverse Person (or by certain related
parties) following a Flip-in Event would entitle its holder to purchase $180.00
worth of Common Stock (or other consideration, as noted above) determined
pursuant to a formula set forth in the Rights Agreement, for $90.00. Assuming
that the Common Stock had a per share value of $45.00 at such time (as
determined pursuant to such formula), the holder of each valid Right would be
entitled to purchase four shares of Common Stock for $90.00.
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 in which it
is the surviving corporation, (ii) the Company engages in a merger or other
business combination transaction in which the Company is the surviving
corporation but its Common Stock is changed or exchanged for stock or securities
of any other person or cash or any other property (other than a merger meeting
certain conditions which follows an offer for all outstanding shares of Common
Stock which a majority of the unaffiliated Directors who are not officers of the
Company determine to be fair to and otherwise in the best interests of the
Company and its stockholders), or (iii) 50% or more of the Company's assets or
earning power is sold or transferred (in one transaction or a series of
transactions) (each such event, a "Flip-Over Event"), then 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 at the then current Purchase
Price (as set forth in the Rights Agreement), common stock of the acquiring
company having a then current market value equal to two times the exercise price
of the Right. The events set forth in this paragraph and the Flip-in Events
described in the second preceding paragraph are referred to as the "Triggering
Events."
The Company may not engage in a transaction with an Acquiring Person
constituting a Flip-Over Event unless the Acquiring Person meets certain
conditions. If the Acquiring Person's (or its affiliated entity's) common stock
has not been registered under the Securities Exchange Act of 1934, as amended,
for the preceding twelve months, but it is a direct or indirect subsidiary of
another company which has registered common stock, the Rights shall be
exercisable as described above to purchase the common stock of such parent
company. Moreover, the Company may not engage in a flip-over transaction unless
the Acquiring Person (or its affiliated entity or parent, as applicable), (i)
has sufficient shares of common stock authorized to permit the full exercise of
the Rights and (ii) enters into an agreement containing the terms set forth
above and providing that, as soon as practicable after the date of the Flip-Over
Event, the Acquiring Person will register the Rights and the securities issuable
upon exercise of the Rights under the Securities Act of 1933, as amended, and
maintain the effectiveness of such registration statement until the Expiration
Date of the Rights Plan. Notwithstanding the foregoing, a merger or
consolidation will not constitute a Flip-Over Event if (i) the transaction is
consummated with a person who acquired Common Stock pursuant to Qualifying Offer
or with a subsidiary of such person; (ii) the price per share of Common Stock
offered in such transaction is not less than the price paid to holders of the
Company's Common Stock whose shares were purchased in the Qualifying Offer; and
(iii) the form of consideration offered in the transaction is the same as the
form of consideration paid pursuant to the Qualifying Offer.
The Purchase Price payable, and the number of units of shares 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 shares of Preferred Stock (other than fractions of one one-hundredth
of a share, or integral multiples thereof) 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.
At any time until the earlier of (a) ten days following the Stock
Acquisition Date or (b) the Final Expiration Date, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the Board of
Directors). Under certain circumstances set forth in the Rights Agreement, the
decision to redeem shall require the concurrence of a majority of the Continuing
Directors. The Company may not redeem the Rights if the Board of Directors has
previously declared a person to be an Adverse Person. Immediately upon the
action of the Board of Directors ordering redemption of the Rights, with, where
required, the concurrence of such Continuing Directors, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 redemption price. In the event that a majority of the members of the Board
serving following a meeting of stockholders or stockholder action by written
consent are not nominated by the Board serving immediately prior to such meeting
or action, then for 180 days following such meeting or action the Rights may not
be redeemed if such redemption is reasonably likely to have the purpose or
effect of allowing any person to become an Acquiring Person, or otherwise
facilitating the occurrence of a Flip-In Event, or a Flip-Over Event or a
transaction with an Acquiring Person.
The term "Continuing Directors" means any member of the Board of
Directors of the Company who was a member of the Board prior to the date of the
Rights Agreement, and any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, an Adverse Person or an
affiliate or associate of any such person, or any representative of the
foregoing entities.
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, or are redeemed as
provided in the second preceding paragraph.
Other than certain 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 (in certain circumstances, with the concurrence of the Continuing
Directors) in order to cure any ambiguity, defect or inconsistency, to make
changes which do not adversely affect the interests of holders of Rights (other
than an Acquiring Person, an Adverse Person or an affiliate or associate
thereof), or to shorten or lengthen any time period under the Rights Agreement;
provided, however, that an amendment to lengthen the time period governing
redemption may be made only if the Rights are redeemable and an amendment to
lengthen any other time period may be made only for the purpose of protecting,
enhancing or clarifying the rights of, and/or benefits to, the holders of Rights
(other than any Acquiring Person or Adverse Person).
The Rights will have certain anti-takeover effects. Exercise of the
Rights will cause substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Company's Board of Directors.
The existence of Rights, however, should not affect an offer at a fair price and
otherwise in the best interests of the Company and its stockholders as
determined by the Board of Directors. The Rights should not interfere with any
merger or other business combination approved by the Board of Directors since
the Board of Directors may, at its option, at any time until ten days following
the Stock Acquisition Date or until a person has been determined to be an
Adverse Person redeem all but not less than all of the then outstanding Rights
at the $.01 redemption price.
The Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as an exhibit the form of
Rights Certificate, 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 the Rights Agreement.
Item 2. EXHIBITS
4 Form of Rights Agreement, dated as of November ___, 1998,
between Tosco Corporation and BankBoston N.A., as Rights Agent
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, thereto duly authorized.
Date: November 24, 1998
TOSCO CORPORATION
By: /s/ Wilkes McClave
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Wilkes McClave
Senior Vice President
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION PAGE
4 Form of Rights Agreement, dated as of
November ___, 1998, between
Tosco Corporation and
BankBoston N.A., as Rights Agent