SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Act of 1934
Date of Report (Date of earliest event reported): April 4, 2001
Dycom Industries, Inc.
(Exact name of Registrant as specified in its charter)
Florida 0-5423 59-1277135
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
4440 PGA Boulevard
Suite 500
Palm Beach Gardens, Florida
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(Address of principal executive offices, including zip code)
(561) 627-7171
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(Registrant's telephone number, including area code)
Item 5. Other Events
On April 4, 2001, the Board of Directors of Dycom Industries, Inc. (the
"Company") declared a distribution of one right (a "Right") for each outstanding
share of common stock, par value $0.33-1/3 per share (the "Company Common
Stock"), to shareholders of record at the close of business on April 14, 2001
(the "Record Date") and for each share of Company Common Stock issued (including
shares distributed from treasury) by the Company thereafter and prior to the
Distribution Date (as defined below). Also on April 4, 2001, the Board of
Directors of the Company, pursuant to the terms of the Shareholders Protection
Rights Agreement, dated June 1, 1992 (the "Existing Rights Agreement"), between
the Company and First Union National Bank, as Rights Agent, declared all rights
to purchase one-half share of Company Common Stock issued under the Existing
Rights Agreement null and void as of the close of business on April 14, 2001,
without payment or obligation on the part of the Company to the holders of such
rights.
Each Right entitles the registered holder, subject to the terms of the
Rights Agreement (as defined below), to purchase from the Company one
ten-thousandth of a share (a "Unit") of Series A Preferred Stock, par value
$1.00 per share (the "Preferred Stock"), at a purchase price of $95.00 per Unit,
subject to adjustment (the "Purchase Price"). The description and terms of the
Rights are set forth in the Shareholder Rights Agreement, dated as of April 4,
2001, between the Company and First Union National Bank, as Rights Agent (the
"Rights Agreement").
The Rights Agreement
Initially, the Rights will attach to all certificates representing
shares of outstanding Company Common Stock, and no separate certificates
evidencing the Rights (the "Rights Certificates") will be distributed. The
Rights will separate from the Company Common Stock and the "Distribution Date"
will occur upon the earlier of (i) the close of business on the tenth day
following a public announcement (the date of such announcement being the "Stock
Acquisition Date") that a person or group of affiliated or associated persons
(other than the Company, any subsidiary of the Company or any employee benefit
plan of the Company or such subsidiary) (an "Acquiring Person") has acquired,
obtained the right to acquire, or otherwise obtained beneficial ownership of 15%
or more of the then outstanding shares of Company Common Stock, and (ii) the
close of business on the tenth business day (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
becomes an Acquiring Person) following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning 15% or
more of the then outstanding shares of Company Common Stock. Until the
Distribution Date, (i) the Rights will be evidenced by Company Common Stock
certificates and will be transferred with and only with such Company Common
Stock certificates, (ii) new Company Common Stock certificates issued after the
Record Date (also including shares distributed from treasury) will contain a
notation incorporating the Rights Agreement by reference and (iii) the surrender
for
transfer of any certificates representing outstanding Company Common Stock will
also constitute the transfer of the Rights associated with the Company Common
Stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on the tenth anniversary of the Rights Agreement
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 Company Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights.
In the event that (i) the Company is the surviving corporation in a
merger with an Acquiring Person and shares of Company Common Stock shall remain
outstanding, (ii) a person becomes an Acquiring Person, (iii) an Acquiring
Person engages in one or more "self-dealing" transactions as set forth in the
Rights Agreement, or (iv) during such time as there is an Acquiring Person, an
event occurs which results in such Acquiring Person's ownership interest being
increased by more than 1% (e.g., by means of a recapitalization) (each such
event being a "Section 11(a)(ii) Event"), then, in each such case, each holder
of a Right will thereafter have the right to receive, upon exercise, Units of
Preferred Stock having a value equal to two times the exercise price of the
Right. The exercise price is the Purchase Price multiplied by the number of
Units of Preferred Stock issuable upon exercise of a Right prior to the events
described in this paragraph. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth 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.
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 and the Company is not the surviving corporation (other than a
merger described in the preceding paragraph), (ii) any person consolidates or
merges with the Company and all or part of the Company Common Stock is converted
or exchanged for securities, cash or property of any other person or (iii) 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 described
above) shall thereafter have the right to receive, upon exercise, common stock
of the ultimate parent of the Acquiring Person having a value equal to two times
the exercise price of the Right.
The Purchase Price payable, and the number of Units of Preferred Stock
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 the
holders of the Preferred Stock of evidences of indebtedness, cash 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. The Company is not
required to issue fractional Units. In lieu thereof, an adjustment in cash may
be made based on the market price of the Preferred Stock prior to the date of
exercise.
At any time until the close of business on the tenth day following the
Stock Acquisition Date, a majority of the Company's Board of Directors may
redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(subject to adjustment in certain events) (the "Redemption Price"), payable, at
the election of a majority of the Company's Board of Directors, in cash or
shares of Company Common Stock. Immediately upon the action of a majority of the
Company's Board of Directors ordering the redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The Board of Directors, at its option, may exchange each Right for (i)
one Unit of Preferred Stock or (ii) such number of Units of Preferred Stock as
will equal (x) the difference between the aggregate market price of the number
of Units of Preferred Stock to be received upon a Section 11(a)(ii) Event and
the purchase price set forth in the Rights Agreement, divided by (y) the market
price per Unit of Preferred Stock upon a Section 11(a)(ii) Event.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder 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 shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Units of Preferred Stock (or other consideration).
Any of the provisions of the Rights Agreement may be amended without
the approval of the holders of Company Common Stock at any time prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended 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 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. Supplements or amendments
to the Rights Agreement may be made only if approved by a majority of the Board
of Directors.
Description of Preferred Stock
The Units of Preferred Stock that may be acquired upon exercise of the
Rights will be nonredeemable and subordinate to any other shares of preferred
stock that may be issued by the Company.
Each Unit of Preferred Stock will have a minimum preferential quarterly
dividend of $0.01 per Unit or any higher per share dividend declared on the
Company Common Stock.
In the event of liquidation, the holder of a Unit of Preferred Stock
will receive a preferred liquidation payment equal to the greater of $0.01 per
Unit and the per share amount paid in respect of a share of Company Common
Stock.
Each Unit of Preferred Stock will have one vote, voting together with
the Company Common Stock, as a single class. The holders of Units of Preferred
Stock, voting as a separate class, shall be entitled to elect two directors if
dividends on the Preferred Stock are in arrears for six fiscal quarters.
In the event of any merger, consolidation or other transaction in which
shares of Company Common Stock are exchanged, each Unit of Preferred Stock will
be entitled to receive the per share amount paid in respect of each share of
Company Common Stock.
The rights of holders of the Preferred Stock to dividends, liquidation
and voting, and in the event of mergers and consolidations, are protected by
customary anti-dilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation
and voting rights, the economic value of one Unit of Preferred Stock that may be
acquired upon the exercise of each Right is expected to approximate the economic
value of one share of Company Common Stock.
The Rights may 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 Company's Board of Directors unless the
offer is conditioned on a substantial number of Rights being acquired. However,
the Rights should not interfere with any merger or other business combination
approved by the Company's Board of Directors because the Rights may be redeemed
by the Company at $ 0.01 per Right at any time on or prior to the tenth business
day following the Stock Acquisition Date (subject to extension by the Company's
Board of Directors). Thus, the Rights are intended to encourage persons who may
seek to acquire control of the Company to initiate such an acquisition through
negotiations with the Board of Directors. However, the effect of the Rights may
be to discourage a third party from making a partial tender offer or otherwise
attempting to obtain a substantial equity position in the equity securities of
or seeking to obtain control of, the Company. To the extent any potential
acquirors are deterred by the Rights, the Rights may have the effect of
preserving incumbent management in office.
The Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the Form of
Rights Certificate, is attached hereto as Exhibit 4 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 Exhibit 4.
Item 7. Financial Statements and Exhibits
Exhibit 4 Shareholder Rights Agreement, dated as of April 4,
2001, between the Company and the Rights Agent (which
includes the Form of Rights Certificate, as Exhibit
A, the Summary of Rights to Purchase Preferred Stock,
as Exhibit B, and the Form of Articles of Amendment
to the Articles of Incorporation of Dycom Industries,
Inc. for Series A Preferred Stock, as Exhibit C).
Exhibit 20(a) Press Release, dated April 4, 2001, issued by the
Company.
Exhibit 20(b) Form of Letter to Shareholders of the Company
regarding the adoption of the Rights Plan pursuant to
the Rights Agreement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Dycom Industries, Inc. has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
DYCOM INDUSTRIES, INC.
Date: April 4, 2001 By: /s/ Steven E. Nielsen
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Name: Steven E. Nielsen
Title: President and Chief
Executive Officer
EXHIBIT INDEX
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Exhibit Description Page No.
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4 Shareholder Rights Agreement, dated April 4, 2001, between
the Company and the Rights Agent (which includes the Form of
Rights, Certificate, as Exhibit A, the Summary of Rights to
Purchase Preferred Stock, as Exhibit B, and the Form of Articles
of Amendment to the Articles of Incorporation of Dycom Industries,
Inc. for Series A Preferred Stock, as Exhibit C).
20(a) Press Release, dated April 4, 2001, issued by the Company.
20(b) Form of Letter to Shareholders of the Company regarding the
adoption of the Rights Plan pursuant to the Rights
Agreement.