UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A12G
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Hach Company
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(Exact name of registrant as specified in its charter)
Delaware 42-070442
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
5600 Lindbergh Drive
Loveland, Colorado 80537
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: 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), please 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), please check the following box. /X/
Securities Act registration statement file number to which this form
relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $1.00 per share
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(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The following summary description is subject to the detailed provisions of
the Company's Restated Certificate of Incorporation, as amended ("Restated
Certificate") and the Company's By-laws, as amended, and does not purport to
be complete and is qualified in its entirety by reference thereto.
The authorized capital stock of the Company consists of 25,000,000 shares of
Common Stock, par value $1.00 per share, and 20,000,000 shares of Class A
Common Stock, par value $1.00 per share. The Common Stock and the Class A
Common Stock are collectively referred to herein as the "Common Stocks." A
listing application with respect to the Class A Common Stock has been filed
with the NASDAQ Stock Market.
GENERAL
Except as otherwise required by the Delaware General Corporation Law
("DGCL") or as otherwise provided in the Company's Amended Restated
Certificate, each share of Common Stock and each share of Class A Common
Stock have identical powers, preferences and rights in all other respects.
There are no redemption or sinking fund provisions applicable to the Common
Stock or the Class A Common Stock. Holders of Common Stock and Class A
Common Stock are not subject to further calls or assessments by the Company.
All outstanding shares of Common Stock and Class A Common Stock, when validly
issued, will be fully paid and non-assessable.
VOTING
The holders of shares of Common Stock are entitled to one vote on any
matter to be voted on by the stockholders of the Company. There is no
provision in the Company's Amended Restated Certificate permitting cumulative
voting. The holders of shares of Class A Common Stock are not entitled to
vote on any matter to be voted on by the stockholders of the Company, except
as required under the DGCL or the Company's Amended Restated Certificate.
Under the Amended Restated Certificate and the DGCL, only the affirmative
vote of the holders of a majority of the outstanding shares of Common Stocks
entitled to vote will be required to amend the Amended Restated Certificate
or to authorize additional shares of Class A Common Stock or Common Stock;
and the affirmative vote of the holders of a majority of the Common Stocks
entitled to vote will be required to approve any merger or consolidation of
the Company with or into any other corporation or sale of substantially all
its assets or to approve the dissolution of the Company, subject to the
provisions of Article Ninth of the Company's Amended Restated Certificate
which is described more fully below under "Certain Provisions of the Amended
Restated Certificate and By-laws; Delaware Anti-takeover Provisions." Except
in certain limited circumstances described below, the holders of the Common
Stock will elect the entire Board of Directors. In addition, as permitted
under the DGCL, the Amended Restated Certificate provides that the number of
authorized shares of either class may be increased or decreased, but not
below the number of shares then outstanding, by the affirmative vote of the
holders of a majority of the Common Stocks entitled to vote.
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Under the DGCL, the holders of Class A Common Stock will be entitled to
vote on proposals to change the par value of the Class A Common Stock or to
alter or change the powers, preferences or special rights of shares of Class A
Common Stock, including the Class A Protection Provision (as described below),
which may affect them adversely.
DIVIDENDS AND DISTRIBUTIONS
Each share of Common Stock and Class A Common Stock will be equal in
respect to dividends and other distributions in cash, stock or property,
including distributions in connection with any recapitalization and upon
liquidation, dissolution, or winding up of the Company, except that (i) a
dividend or distribution in cash or property on a share of Class A Common
Stock may be greater than any dividend or distribution in cash or property on
a share of Common Stock, and (ii) dividends or other distributions payable on
the Class A Common Stock and Common Stock in shares of capital stock shall be
made to all holders of the Class A Common Stock and Common Stock and may be
made (a) in shares of Class A Common Stock to the holders of Class A Common
Stock and in shares of Common Stock to the holders of Common Stock, (b) in
shares of Class A Common Stock to the holders of Class A Common Stock and to
holders of Common Stock, or (c) in any other authorized class or series of
capital stock to the holders of Class A Common Stock and Common Stock. In no
event will either the Class A Common Stock or Common Stock be split,
subdivided, or combined unless the other is proportionately split,
subdivided, or combined.
Although the Board of Directors has authority under the Amended Restated
Certificate to pay dividends and make distributions on the Class A Common
Stock in amounts greater than on the Common Stock, the Board of Directors
currently intends to pay dividends on an equal per share basis.
MERGERS AND CONSOLIDATIONS
Each holder of Class A Common Stock and Common Stock will be entitled to
receive the same per share consideration in the event of a merger or
consolidation.
CLASS A PROTECTION
The Amended Restated Certificate contains a "Class A Protection
Provision" which provides that if any person or group (other than the
Company), acquires beneficial ownership of 15% or more of the then
outstanding shares of Common Stock after the time the Amendment has become
effective (the "Effective Time"), and such person or group (a "Significant
Stockholder") does not immediately after such acquisition beneficially own an
equal or greater percentage of all then outstanding shares of Class A Common
Stock, such Significant Stockholder must, within a 90-day period beginning
the day after becoming a Significant Stockholder, commence a public cash
tender offer as described below to acquire additional shares of Class A
Common Stock (a "Class A Protection Transaction"). If a Significant
Stockholder does not undertake the required Class A Protection transaction,
he would lose the right to vote the shares of Common Stock shares acquired
after the Effective Time. For example, if a stockholder owns 4% of the
Common Stock prior to the adoption of the Amendment and thereafter purchases
an additional 16% of the Common Stock without purchasing any additional Class
A Common Stock, such stockholder will not be allowed to vote the 16% of the
Common Stock acquired after the Effective Time unless he commences a tender
offer for an additional 16% of the Class A Common Stock at the prescribed
price. Alternatively, such stockholder could sell that number of shares equal
to 2% of the outstanding Common Stock, thus dropping the percentage of Common
Stock acquired by him after the Effective Time to 14%, leaving him with an
aggregate of 18% of the Common Stock, all of which he could vote.
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The 15% Common Stock ownership threshold which initially triggers a Class
A Protection Transaction may not be waived by the Board of Directors, nor may
the Board of Directors amend this threshold in the Amended Restated
Certificate without stockholder approval, including under the Amended
Restated Certificate, a majority vote of the outstanding Class A Common Stock
voting separately as a class.
In connection with the application of the Class A Protection Provision,
the following shares of the Company's Common Stock shall be excluded from any
determination of the shares of Common Stock owned by a person or group, but
not for the purpose of determining shares outstanding: (i) shares
beneficially owned at the Effective Time; (ii) shares acquired by will, by
laws of descent and distribution, by gift, or by foreclosure of a bona fide
loan; (iii) shares acquired from the Company; (iv) shares acquired by
operation of law (including a merger or consolidation effected for the
purpose of recapitalizing or reincorporating such person but not for the
purpose of acquiring another person); (v) shares acquired in exchange for
shares of Class A Common Stock if the Class A Common Stock were acquired by
the exchanging party directly from the Company as a result of the Amendment
or any subsequent stock split or as a dividend on Common Stock; and (vi)
shares acquired by or from a qualified employee benefit plan of the Company
(collectively the "Excluded Shares").
In each Class A Protection Transaction, the Significant Stockholder must
make a public tender offer to acquire at least that number of additional
shares of Class A Common Stock (the "Additional Shares") determined by
(i) multiplying the percentage of the number of shares of outstanding Common
Stock beneficially owned and acquired after the Effective Time by such
Significant Stockholder by the total number of shares of Class A Common Stock
outstanding on the date such Person or group became a Significant
Stockholder; and (ii) subtracting therefrom the number of shares of Class A
Common Stock beneficially owned by such Significant Stockholder on the date
such Person became a Significant Shareholder which were acquired after the
Effective Time. The Significant Stockholder must acquire all Class A Common
Stock validly tendered or, if the number of shares tendered exceeds the
number determined pursuant to such formula, a pro-rata number of Class A
Common Stock from each tendering holder (based on the number of shares of
Class A Common Stock tendered by each tendering stockholder).
The offer price for any shares of Class A Common Stock required to be
purchased by the Significant Stockholder pursuant to this provision would be
the greatest of: (i) the highest price per share paid by the Significant
Stockholder for any share of Class A Common Stock or Common Stock in the
six-month period ending on the date such person or group became a Significant
Stockholder (or such shorter period after the Effective Time if the date such
person or group became a Significant Stockholder is not more than six months
following the Effective Time); (ii) the highest reported sale price of a
share of Class A Common Stock or Common Stock on The NASDAQ Stock Market
National Market System (or such other securities exchange or quotation system
as is then the principal trading market for such shares) during the
thirty-day period preceding the date such person or group became a
Significant Stockholder; or (iii) the highest reported sale price for a share
of Class A Common Stock or a share of Common Stock on The NASDAQ Stock Market
National Market System (or such other securities exchange or quotation system
constituting the principal trading market for such shares) on the business
day preceding the date the Significant Stockholder commences the required
tender offer.
A Class A Protection Transaction would also be required of any
Significant Stockholder that acquires an additional amount of Common Stock
equal to or greater than the next higher multiple of 5% (e.g., 20%, 25%, 30%,
etc.) of the outstanding Common Stock (excluding Excluded Shares) after the
Effective Time if such Significant Stockholder does not then own an equal or
greater percentage of all then
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outstanding Class A Common Stock that such Significant Stockholder acquired
after the Effective Time. Such Significant Stockholder would be required to
make a public cash tender offer to buy that number of Additional Shares
determined in accordance with the formula set forth above in the second
preceding paragraph at the offer price described in the immediately preceding
paragraph, even if a previous Class A Protection Transaction resulted in
fewer shares of Class A Common Stock being tendered than the Significant
Stockholder was required to offer to purchase in the previous offer.
The requirement to engage in a Class A Protection Transaction will be
satisfied by making the requisite offer and purchasing validly tendered
shares, even if the number of shares tendered is less than the number of
shares the Significant Stockholder was required to offer to purchase. If any
Significant Stockholder fails to make the required tender offer, or to
purchase shares validly tendered (after proration, if any), the voting rights
of all Common Stock owned by such Significant Stockholder and acquired after
the Effective Time will be automatically suspended until consummation of an
offer as required by the terms of the Class A Protection feature or until
divestiture of the excess Common Stock that triggered the tender offer
requirement. To the extent that the voting power of any Common Stock is so
suspended, such shares will not be included in the determination of aggregate
voting shares for any purpose.
Neither the Class A Protection Transaction requirement nor the related
possibility of suspension of voting rights applies to any increase in
percentage ownership of Common Stock resulting solely from a change in the
total number of Common Stock outstanding. All calculations with respect to
percentage ownership of outstanding shares of either class of Common Stock
shall be based upon the number of outstanding shares reflected in either the
records of or a certificate from the Company's stock transfer agent or
reported in the last to be filed of the Company's Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or definitive proxy
statement.
Since the definition of Significant Stockholder is based on the
beneficial ownership percentage of Common Stock acquired after the Effective
Time of the Recapitalization Amendment, a person or group who is a
stockholder of the Company at the Effective Time will not become a
Significant Stockholder unless such person or group acquires an additional
15% of the then outstanding Common Stock, regardless of the number of shares
of Existing Common Stock owned prior to the Effective Time. For purposes of
the Class A Protection feature, the terms "beneficial ownership" and "group"
generally have the same meanings as used in Regulation 13D promulgated under
the Securities Exchange Act of 1934 (the "Exchange Act"), subject to certain
exceptions set forth therein.
The Class A Protection provision does not prevent any person or group
from acquiring a significant or controlling interest in the Company, provided
such person or group acquires a proportionate percentage of the Class A
Common Stock, undertakes a Class A Protection Transaction or incurs the
suspension of the voting rights of the Common Stock as provided by the Class
A Protection feature. If a Class A Protection Transaction is required, the
purchase price to be paid in such offer may be higher than the price at which
a Significant Stockholder might otherwise be able to acquire an identical
number of Class A Common Stock. Such requirement could make an acquisition of
a significant or controlling interest in the Company more expensive and, if
the Class A Protection Transaction is required, more time consuming, than if
such requirement did not exist. Consequently, a person or group might be
deterred from acquiring a significant or controlling interest in the Company
as a result of such requirement. However, by restricting the ability of an
acquirer to acquire a significant interest in the Common Stock by paying a
"control premium" for such shares without acquiring, or paying a similar
premium for, Class A Common Stock, the Class A Protection feature is designed
to help reduce or eliminate any discount on either of these classes of Common
Stocks.
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ADDITIONAL VOTING RIGHTS OF CLASS A COMMON STOCK
Neither the Common Stock nor the Class A Common Stock will be convertible
into another class of common stock or any other security of the Company.
However, the holders of outstanding Class A Common Stock will be entitled to
one vote per share of Class A Common Stock on all matters presented to the
stockholders of the Company automatically (i) at any time when the number of
outstanding shares of Common Stock falls below 10% of the aggregate number of
outstanding Common Stock and Class A Common Stock; and (ii) upon resolution
of the Board of Directors if, as a result of the existence of the Class A
Common Stock, either the Common Stock or Class A Common Stock or both, are
excluded from trading on The NASDAQ Stock Market National Market System and
other comparable quotation systems then in use, and are excluded from trading
by the New York Stock Exchange, American Stock Exchange and all other
principal national securities exchanges then in use. Upon any such change,
the voting interests of the holders of Common Stock would be diluted. In
addition, to the extent that the market price of the Common Stock is higher
or lower than the market price of the Class A Common Stock immediately prior
to such change, the market price of the shares held by particular holders may
be adversely affected by the change.
PREEMPTIVE RIGHTS
None of the Common Stock or the Class A Common Stock will carry any
preemptive rights enabling a holder to subscribe for or receive shares of the
Company of any class or any other securities convertible into any class of
the Company's shares.
CERTAIN PROVISIONS OF THE AMENDED RESTATED CERTIFICATE AND BY-LAWS; DELAWARE
ANTI-TAKEOVER PROVISIONS
The Amended Restated Certificate and By-laws of the Company and the DGCL
contain certain provisions that may enhance the likelihood of continuity and
stability in the composition of the Board of Directors and may discourage a
future unsolicited takeover of the Company. These provisions could have the
effect of discouraging certain attempts to acquire the Company or remove
incumbent management, including incumbent members of the Board of Directors,
even if some or a majority of the Company's stockholders deemed such an
attempt to be in their best interests.
Article Ninth of the Company's Amended Restated Certificate requires,
subject to certain exceptions, the affirmative vote of the holders of at
least 80% of all outstanding shares of capital stock of the Company entitled
to vote on all matters that may come before a meeting of stockholders in
order to (i) effect a merger or consolidation of the Company or any
subsidiary with or into another corporation or (ii) authorize the sale,
lease, exchange or other disposition by the Company or any subsidiary of all
or a substantial part of the assets of the Company or any subsidiary to any
corporation, person or entity or (iii) authorize the Company or its
subsidiary to issue or transfer more than 10% of the Company's outstanding
voting securities or any securities of any subsidiary to any other
corporation, person or entity in exchange for securities, cash or other
property, if, in any of the above cases, such other corporation, person or
entity including its affiliates and associated persons, is the beneficial
owners, directly or indirectly of 5% or more of the outstanding shares of
capital stock of the Company entitled to vote on all matters that may come
before such meeting of stockholders (an "Interested Party"). The requirement
for approval by an 80% vote is not applicable to any of the above referenced
transactions if (i) the Board of Directors by resolution has approved a
memorandum of understanding with the other party substantially consistent
with such transaction prior to the time such party became a holder of more
than 5% of the capital stock of the
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Company or (ii) the Company or any subsidiary is at the time of the
consummation of such transaction is the beneficial owner of (x) a majority,
by vote, of the outstanding shares of all classes of capital stock entitled
to vote in elections for directors of such other corporation or (y) a
majority by voting interest in the other entity when the transaction is
consummated. Unless the Class A Common Stock becomes entitled to the
additional voting rights described above, (i) holders of Class A Common Stock
will not be entitled to vote on the approval of a proposed transaction with
an Interested Party and (ii) a person's ownership of Class A Common Stock
will not be counted in determining whether such person is an "Interested
Party" under Article Ninth.
The Company is a Delaware corporation and consequently is subject to
certain anti-takeover provisions of the DGCL. The business combination
provision contained in Section 203 of the DGCL ("Section 203") defines and
interested stockholder of a corporation as any person that (i) owns, directly
or indirectly, or has the right to acquire, 15% or more of the outstanding
voting stock of the corporation or (ii) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock
of the corporation at any time within the three-year period immediately prior
to the date on which it is sought to be determined whether such person is an
interested stockholder; and the affiliates and the associates of such person.
Under Section 203, a Delaware corporation may not engage in any business
combination with any interested stockholder for a period of three years (i)
prior to such date the board of directors of the corporation approved either
the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder, (ii) upon consummation of the transaction
which resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding, for
determining the number of shares outstanding, (a) shares owned by persons who
are directors and officers and (b) employee stock plans, in certain
instances), or (iii) on or subsequent to such date the business combination
is approved by the board of directors and authorized at an annual or special
meeting of stockholders by at least 66-2/3% of the outstanding voting stock
that is not owned by the interested stockholder. The restrictions imposed by
Section 203 will not apply to a corporation if the corporation, by the action
of its stockholders holding a majority of the outstanding stock, adopts an
amendment to its certificate of incorporation or by-laws expressly electing
not to be governed by Section 203 (such amendment will not be effective until
12 months after adoption and shall not apply to any business combination
between such corporation and any person who became an interested stockholder
of such corporation on or prior to such adoption).
The Company has not elected to opt out of Section 203, and the
restrictions imposed by Section 203 apply to the Company. Section 203 could,
under certain circumstances, make it more difficult for a third party to gain
control of the Company, deny stockholders the receipt of a premium on their
Class A Common Stock and Common Stock and have a depressive effect on the
market price of the Class A Common Stock and Common Stock.
ITEM 2. EXHIBITS.
Exhibit No. Description of Exhibit
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1.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by
reference to Exhibit (3)a. of Registrant's
Form 10-K Annual Report for the fiscal year
ended April 30, 1993, Commission File No. 0-3947).
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1.2 Certificate of Amendment to Article Fourth of the
Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary
of State on September 10, 1997 (filed herewith).
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3(b).
of Registrant's Form 10-K Annual Report for
the fiscal year ended April 30, 1996,
Commission File No. 0-3947).
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.
Dated: September 10, 1997
HACH COMPANY
By: /s/ Bruce J. Hach
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Bruce J. Hach, President
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EXHIBIT LIST
Exhibit No. Description of Exhibit
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1.1 Restated Certificate of Incorporation of the
Registrant, as amended (incorporated by
reference to Exhibit (3)a. of Registrant's
Form 10-K Annual Report for the fiscal year
ended April 30, 1993, Commission File No. 0-3947).
1.2 Certificate of Amendment to Article Fourth of the
Restated Certificate of Incorporation of the
Registrant as filed with the Delaware Secretary
of State on September 10, 1997 (filed herewith).
2 By-laws of the Registrant, as amended
(incorporated by reference to Exhibit 3(b).
of Registrant's Form 10-K Annual Report for
the fiscal year ended April 30, 1995,
Commission File No. 0-3947).
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