-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HvUKEE7lfzV0KmO7RTryt7Is051sVVI9ki7vSwc+LW4uf/gQaQPwyI3otDnp99yf TW3EpS1fvELPSsIAHFWLpw== 0000950168-97-001660.txt : 19970626 0000950168-97-001660.hdr.sgml : 19970626 ACCESSION NUMBER: 0000950168-97-001660 CONFORMED SUBMISSION TYPE: 8-A12B/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970625 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE OF CAROLINA INC CENTRAL INDEX KEY: 0000312840 STANDARD INDUSTRIAL CLASSIFICATION: GAMES, TOYS & CHILDREN'S VEHICLES (NO DOLLS & BICYCLES) [3944] IRS NUMBER: 132999480 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-07909 FILM NUMBER: 97629392 BUSINESS ADDRESS: STREET 1: 501 DANIEL ST STREET 2: PO BOX 4000 CITY: TARBORO STATE: NC ZIP: 27886-4000 BUSINESS PHONE: 9198234111 MAIL ADDRESS: STREET 1: P O BOX 4000 CITY: TARBORO STATE: NC ZIP: 27886 8-A12B/A 1 EMPIRE OF CAROLINA - 8-A12B/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-A/A AMENDMENT NO. 2 FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 Empire of Carolina, Inc. (Exact name of registrant as specified in its charter) Delaware 13-2999480 (State of incorporation or organization) (IRS Employer Identification No.) 5150 Linton Boulevard, Delray Beach, Florida 33484 (Address of principal executive offices) (Zip Code) If this Form relates to the registration of a class of debt securities and is effective upon filing pursuant to General Instruction A.(c)(1), please check the following box. [ ] If this Form relates to the registration of a class of debt securities and is to become effective simultaneously with the effectiveness of a concurrent registration statement under the Securities Act of 1933 pursuant to General Instruction A.(c)(2), please check the following box. [ ] 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 Share Purchase Rights American Stock Exchange Securities to be registered pursuant to Section 12(g) of the Act: None (Title of Class) Item 1. Description of Securities to be Registered. On June 12, 1997, Empire of Carolina, Inc., a Delaware corporation (the "Company") and American Stock Transfer & Trust Company, a New York corporation, as Rights Agent (the "Rights Agent"), adopted the Second Amendment (the "Second Amendment") to the Rights Agreement dated as of September 11, 1996 (the "Rights Agreement") between the Company and the Rights Agent, as amended by the First Amendment thereto dated as of May 5, 1997. The Second Amendment, among other things, amends the definition of "Acquiring Person" in Section 1(a) of the Rights Agreement to base the 15% threshold specified therein on the aggregate number of "Fully-Diluted Common Shares" (as defined in the Second Amendment) of the Company. The Second Amendment is attached as an exhibit hereto, and is incorporated herein by reference. Except as incorporated by reference herein, the description of the Rights Agreement set forth in the Registration Statement on Form 8-A filed by the Company with the Securities and Exchange Commission on September 12, 1996, as amended by Amendment No. 1 to such Registration Statement on Form 8-A filed with the Securities and Exchange Commission on May 5, 1997, remains in full force and effect. Item 2. Exhibits. Exhibit Number Description 1 Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent, which includes (i) as Exhibit A thereto the form of Certificate of Designation of the Series B Junior Participating Preferred Stock, (ii) as Exhibit B thereto the form of Right certificate (separate certificates for the Rights will not be issued until after the Distribution Date) and (iii) as Exhibit C thereto the Summary of Stockholder Rights Agreement (incorporated by reference from the Registration Statement on Form 8-A filed with the Commission on September 12, 1996). 2 First Amendment dated as of May 5, 1997, to Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent (incorporated by reference from Amendment No. 1 to the Registration Statement on Form 8-A filed with the Commission on May 5, 1997). -2- 3 Second Amendment dated as of June 12, 1997, to Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent, as amended. Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized. Date: June 25, 1997 EMPIRE OF CAROLINA, INC. By: /s/ Steven Geller Name: Steven Geller Title: Chairman and Chief Executive Officer -3- EXHIBIT INDEX Exhibit Number Description 1 Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent, which includes (i) as Exhibit A thereto the form of Certificate of Designation of the Series B Junior Participating Preferred Stock, (ii) as Exhibit B thereto the form of Right certificate (separate certificates for the Rights will not be issued until after the Distribution Date) and (iii) as Exhibit C thereto the Summary of Stockholder Rights Agreement (incorporated by reference from the Registration Statement on Form 8-A filed with the Commission on September 12, 1996). 2 First Amendment dated as of May 5, 1997, to Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent (incorporated by reference from Amendment No. 1 to the Registration Statement on Form 8-A filed with the Commission on May 5, 1997). 3 Second Amendment dated as of June 12, 1997, to Rights Agreement, dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent, as amended. -4- EX-3 2 EXHIBIT 3 EXHIBIT 3 SECOND AMENDMENT TO RIGHTS AGREEMENT THIS SECOND AMENDMENT to the Rights Agreement (the "Rights Agreement") dated as of September 11, 1996, between Empire of Carolina, Inc. and American Stock Transfer & Trust Company as Rights Agent ("American Stock Transfer") is dated as of the 12th day of June 1997. WHEREAS, following the consummation of the transactions contemplated by that certain Securities Purchase Agreement dated as of May 5, 1997 among the Corporation, HPA Associates L.L.C., a Delaware limited liability company, and EMP Associates L.L.C., a Delaware limited liability company, as amended by Amendment No. 1 thereto (as amended, the "Securities Purchase Agreement"), the Company will have issued securities convertible into or exercisable for a substantial number of shares of the Corporation's Common Stock and certain investors will beneficially own securities convertible into or exercisable for significant levels of the Corporation's outstanding Common Stock; and WHEREAS, the Board of Directors of the Company believes that it is in the best interests of the Company and its stockholders that the Rights Agreement be amended as set forth herein; and WHEREAS, Section 27 of the Rights Agreement authorizes the Board of Directors of the Company and the Rights Agent to adopt the proposed amendment without the approval of the Company's stockholders; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties agree to amend the Rights Agreement as follows: 1. Section 1(a) of the Rights Agreement is hereby amended by deleting Section 1(a) thereof in its entirety and substituting the following therefor: (a) "Acquiring Person" means any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or more of the aggregate number of Fully-Diluted Common Shares of the Company, but shall in no event include any Exempt Person. Notwithstanding the foregoing, (i) no Person shall become an "Acquiring Person" as the result of (A) an acquisition of Common Shares by the Company which, by reducing the number of the Company's Common Shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 15% or more of the Fully-Diluted Common Shares or (B) the lapse, forfeiture, cancellation, termination or expiration without exercise or conversion into Common Shares of the Company of any stock option, warrant, convertible security or other right to acquire Common Shares; provided, however, that if a -5- Person shall become the Beneficial Owner of 15% or more of the Fully-Diluted Common Shares of the Company by reason of share acquisitions by the Company or the lapse, forfeiture, cancellation, termination or expiration without exercise or conversion into Common Shares of any stock option, warrant, convertible security or other right to acquire Common Shares of the Company and shall, after such share acquisitions by the Company or such lapse, forfeiture, cancellation, termination or expiration, (A) acquire, in one or more transactions, beneficial ownership of an additional number of Common Shares which exceeds the lesser of 10,000 Common Shares or 0.25% of the then-outstanding Common Shares and (B) beneficially own after such acquisition 15% or more of the Fully-Diluted Common Shares of the Company at such time, then such Person shall be deemed to be an "Acquiring Person" and (ii) if the Board of Directors determines in good faith that a Person who would otherwise be an Acquiring Person, as defined pursuant to the foregoing provisions of this paragraph (a), has become such inadvertently, and such Person divests as promptly as practicable a sufficient number of Common Shares so that such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing provisions of this paragraph (a), then such Person shall not be deemed to be an "Acquiring Person" for any purposes of this Agreement. 2. Section 1 of the Rights Agreement is hereby amended by inserting the following immediately after Section 1(l) thereof: (m) "Fully-Diluted Common Shares" means the sum of (A) the aggregate number of Common Shares of the Company then outstanding and (B) the aggregate number of Common Shares of the Company then issuable upon the exercise of all outstanding stock options, warrants, convertible securities, and other rights to acquire Common Shares of the Company then outstanding. 3. Section 1 of the Rights Agreement is hereby amended by redesignating paragraphs (m) through (y) thereof as paragraphs (n) through (z). 4. Capitalized terms used but not defined herein shall have the meaning assigned to such terms in the Rights Agreement. 5. Except as expressly amended hereby, the Rights Agreement remains in full force and effect. 6. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware, and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts made and performed entirely within such State. -6- 7. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written. EMPIRE OF CAROLINA, INC. Attest: By /s/ Lawrence Geller By /s/ Steven Geller Name: Lawrence Geller Name: Steven Geller Title: General Counsel and Secretary Title: Chairman and Chief Executive Officer AMERICAN STOCK TRANSFER & TRUST COMPANY Attest: By /s/ By /s/ Herbert J. Lemmer Name: Name: Herbert J. Lemmer Title: Title: Vice President -7- -----END PRIVACY-ENHANCED MESSAGE-----