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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOG CUTTER CAPITAL GROUP INC.
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(Exact name of registrant as specified in its charter)
Maryland 52-2081138
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(State of incorporation or organization) (IRS Employer Identification No.)
1410 SW Jefferson, Portland, Oregon 97201
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
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(Title of Class)
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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The Board of Directors of Fog Cutter Capital Group Inc. (the
"Corporation") declared a dividend distribution of one right (a "Right") to
purchase one one-tenth of a share of the Common Stock, $0.0001 par value, of the
Corporation (the "Common Shares") for each outstanding share of Common Stock,
payable to the stockholders of record on October 28, 2002 (the "Record Date").
The Board of Directors also authorized and directed the issuance of one Right
with respect to each Common Share issued thereafter until the Distribution Date
(as defined below) and, in certain circumstances, with respect to Common Shares
issued after the Distribution Date. Except as set forth below, each Right, when
it becomes exercisable, entitles the registered holder to purchase from the
Corporation one one-tenth of a Common Share at a price of $15.00 per whole
Common Share (the "Purchase Price"), subject to adjustment. The description and
terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement")
between the Corporation and The Bank of New York, as Rights Agent (the "Rights
Agent"), dated as of October 18, 2002.
Initially, the Rights will be attached to all certificates representing
Common Shares then outstanding, and no separate Right Certificates will be
distributed. The Rights will separate from the Common Shares upon the earliest
to occur of (i) a person or group of affiliated persons having acquired
beneficial ownership of 5% or more of the outstanding Common Shares (except
pursuant to a Permitted Offer, as hereinafter defined) or a person or group of
affiliated persons which had prior to October 28, 2002 acquired beneficial
ownership of 5% or more of the outstanding Common Shares and thereafter
increases its ownership interest by 1% or more of the then outstanding Common
Shares (other than as a result of a Permitted Offer) or (ii) 10 days (or such
later date as the Board of Directors may determine) following the commencement
of, or announcement of an intention to make, a tender offer or exchange offer
the consummation of which would result in a person or group becoming an
Acquiring Person (as hereinafter defined) (the earliest of such dates being
called the "Distribution Date"). A person or group whose acquisition of Common
Shares causes a Distribution Date pursuant to clause (i) above is an "Acquiring
Person." The date that a person or group becomes an Acquiring Person is the
"Shares Acquisition Date." A person who acquires Common Shares pursuant to a
tender or exchange offer which is for all outstanding Common Shares at a price
and on terms which a majority of the Board of Directors determines (prior to
acquisition) to be adequate and in the best interests of the Corporation and its
stockholders (other than such person, its affiliates and associates) or a person
who acquires Common Shares or other securities of the Corporation or a
subsidiary at a price and on terms determined by the Board of Directors to be
adequate (taking into account all factors that such directors deem relevant,
including the impact on the Corporation's net operating loss carry forwards) and
otherwise in the best interest of the Corporation and its stockholders (other
than such person and its affiliates) (a "Permitted Offer") will not be deemed to
be an Acquiring Person and such person's ownership will not constitute a
Distribution Date.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date upon the transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such notation or a
copy of this Summary of Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. Unless previously exercised, as soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date (and to each initial record
holder of certain Common Shares issued after the Distribution Date), and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date, and will
expire at the close of business on October 28, 2012, unless earlier redeemed by
the Corporation as described below.
In the event that any person becomes an Acquiring Person, each holder
of Rights (other than Rights that have become void as described below) will
thereafter have the right (the "Flip-In Right") to receive, upon exercise of
such Rights, the number of Common Shares (or, in certain circumstances, other
securities of the Corporation) having a value (immediately prior to such
triggering event) equal to two times the aggregate exercise price of such
Rights; provided, however, in the event that a Person has become an Acquiring
Person on the Shares Acquisition Date, (1) the Rights (which shall not include
Rights that have become void as described below) shall be deemed to be
automatically exercised on the Shares Acquisitions Date, (2) each Holder will be
entitled to receive Common Shares of the Corporation at an exchange ratio of one
Common Share (or a lesser ratio in certain limited circumstances) per Right,
subject to adjustment in certain cases (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"), in lieu of paying the Purchase Price and
receiving the Common Shares otherwise provided herein, and (3) no Rights
Certificates will be distributed in respect thereof. The Board, at its option,
may exchange each Right (other than those that have become void as described
below) for one Common Share in lieu of the Flip-In Right, provided no person is
the beneficial owner of 50% or more of the Common Shares at the time of such
exchange. Notwithstanding the foregoing, following the occurrence of the event
described above, all Rights that are or (under certain circumstances specified
in the Rights Agreement) were beneficially owned by any Acquiring Person or any
affiliate thereof will be null and void.
In the event that, at any time following the Shares Acquisition Date,
(i) the Corporation is acquired in a merger or other business combination
transaction in which the holders of all of the outstanding Common Shares
immediately prior to the consummation of the transaction are not the holders of
all of the surviving corporation's voting power, or (ii) more than 50% of the
Corporation's assets or earning power is sold or transferred, then each holder
of Rights (except Rights which previously have been voided as set forth above)
shall thereafter have the right (the "Flip-Over Right") to receive, upon
exercise of such Rights, common shares of the acquiring company having a value
equal to two times the aggregate exercise price of the Rights; provided,
however, that the Flip-Over Right shall not apply to any transaction described
in clause (i) if (x) such transaction is with a person or persons (or a wholly
owned subsidiary of any such person or persons) that acquired Common Shares
pursuant to a Permitted Offer and (y) the price and form of consideration
offered in such transaction is the same as that paid to all holders of Common
Shares whose shares were purchased pursuant to the Permitted Offer. The holder
of a
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Right will continue to have the Flip-Over Right whether or not such holder
exercises or surrenders the Flip-In Right.
The Purchase Price payable, and the number of Common Shares or other
securities 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 Common Shares, (ii) upon
the grant to holders of the Common Shares of certain rights or warrants to
subscribe for or purchase Common Shares at a price, or securities convertible
into Common Shares with a conversion price, less than the then current market
price of the Common Shares, or (iii) upon the distribution to holders of the
Common Shares of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above). Notwithstanding the foregoing, in the event that the
Corporation declares a dividend per share (whether cash, securities, rights or
other distribution) in respect of the Common Shares for holders as of a record
date (the "Dividend Record Date") and if Rights become exercisable
(automatically or otherwise) and are exercised after the date of such
declaration but prior to the Dividend Record Date, the aggregate amount (or
number of securities or other rights) of such dividend shall remain the same and
the per share dividend shall be reduced to reflect the increased number of
Common Shares outstanding following such exercise of Rights.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Common Shares will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Corporation may
redeem the Rights in whole, but not in part, at a price of $.001 per Right (the
"Redemption Price"), which redemption shall be effective at such time, on such
basis and with such conditions as the Board of Directors may establish in its
sole discretion. The Corporation may, at its option, pay the Redemption Price in
Common Shares.
All of the provisions of the Rights Agreement may be amended by the
Board of Directors prior to the Distribution Date. After the Distribution Date,
the provisions of the Rights Agreement may be amended by the Board in order to
cure any ambiguity, defect or inconsistency, to make changes which do not
adversely affect the interests of holders of Rights (excluding the interests of
any Acquiring Person), or, subject to certain limitations, to shorten or
lengthen any time period under the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Corporation, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights will
not be taxable to stockholders of the Corporation, stockholders may, depending
upon the circumstances, recognize taxable income should the Rights become
exercisable or upon the occurrence of certain events thereafter.
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The Rights will help protect the Corporation's net operating loss carry
forwards and have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination approved by the
Board of Directors, as the Rights may be redeemed by the Corporation at $.001
per Right prior to the time that a person or group becomes an Acquiring Person.
The Rights Agreement, dated as of October 18, 2002, between the
Corporation and The Bank of New York, as Rights Agent, specifying the terms of
the Rights is attached hereto as an exhibit and is incorporated herein by
reference. The foregoing description of the Rights is qualified in its entirety
by reference to such exhibit.
Item 2. EXHIBITS.
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1. Rights Agreement dated as of October 18, 2002 between Fog Cutter
Capital Group Inc. and The Bank of New York with the form of Right
Certificate attached as Exhibit A thereto and the Summary of Rights
to Purchase Shares attached as Exhibit B thereto. Pursuant to the
Rights Agreement, printed Right Certificates will generally not be
mailed until as soon as practicable after the earlier of the date of
public announcement that a person or group has become an Acquiring
Person or the tenth day (or such later date as may be determined by
action of the Corporation's Board of Directors) after a person
commences or announces its intention to commence a tender or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 5% or more of the
Common Shares.
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SIGNATURE
Pursuant to the requirement 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 28, 2002
FOG CUTTER CAPITAL GROUP INC.
By:
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Name: R. Scott Stevenson
Title: Senior Vice President and
Chief Financial Officer
EXHIBIT LIST
Rights Agreement dated as of October 18, 2002 between Fog Cutter
Capital Group Inc. and The Bank of New York, the form of Right Certificate as
Exhibit A and the Summary of Rights to Purchase Shares as Exhibit B. Pursuant to
the Rights Agreement, printed Right Certificates will generally not be mailed
until as soon as practicable after the earlier of the date of public
announcement that a person or group has become an Acquiring Person or the tenth
day (or such later date as may be determined by action of the Corporation's
Board of Directors) after a person commences or announces its intention to
commence a tender or exchange offer the consummation of which would result in
the beneficial ownership by a person or group of 5% or more of the Common
Shares.