e8va12b
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
23-2416878 |
|
|
|
(State of incorporation or organization)
|
|
(IRS Employer Identification No.) |
|
|
|
250 Gibraltar Road, Horsham, Pennsylvania
|
|
19044 |
|
|
|
(Address of principal executive offices)
|
|
(Zip Code) |
|
|
|
|
|
Name of Each Exchange on Which Each |
Title of Each Class to be so Registered |
|
Class is to be so Registered |
|
Preferred Stock Purchase Rights
|
|
New York Stock Exchange, Inc. |
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), check the following box. þ
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), check the following box. o
Securities
Act registration statement file number to which this form relates:
N/A (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act: None
Item 1. Description of Securities to be Registered.
On June 17, 2009, the Board of Directors of Toll Brothers, Inc. (the Company) approved the
execution of a Section 382 Rights Agreement (the Rights Agreement) between the Company and
American Stock Transfer & Trust Company, LLC (the Rights Agent). The Rights Agreement provides
for a distribution of one preferred stock purchase right (a Right) for each share of Common
Stock, par value $0.01 per share, of the Company (the Common Stock) outstanding to stockholders
of record at the close of business on July 17, 2009 (the Record Date). Each Right entitles the
registered holder to purchase from the Company a unit (a Unit) consisting of one ten-thousandth
of a share of Series B Junior Participating Preferred Stock, par value $0.01 per share (the
Preferred Stock), at a Purchase Price of $100.00 per Unit (the Purchase Price), subject to
adjustment. The description and terms of the Rights are set forth in the Rights Agreement.
The Board of Directors of the Company adopted the Rights Agreement in an effort to protect
stockholder value by attempting to protect against a possible limitation on the Companys ability
to use its net operating loss carryforwards (the NOLs) to reduce potential future federal income
tax obligations. The Company has experienced and continues to experience substantial operating
losses, and under the Internal Revenue Code of 1986, as amended (the Code), and rules promulgated
by the Internal Revenue Service, the Company may carry forward these losses in certain
circumstances to offset any current and future earnings and thus reduce the Companys federal
income tax liability, subject to certain requirements and restrictions. To the extent that the NOLs
do not otherwise become limited, the Company believes that it will be able to carry forward a
significant amount of NOLs, and therefore these NOLs could be a substantial asset to the Company.
However, if the Company experiences an Ownership Change, as defined in Section 382 of the Code,
its ability to use the NOLs will be substantially limited, and the timing of the usage of the NOLs
could be substantially delayed, which could therefore significantly impair the value of that asset.
Upon
approval of the Rights Agreement by the Companys stockholders,
the Board of Directors of the Company intends
to take action to redeem the Companys pre-existing shareholder rights plan, which was adopted in
2007.
Initially, the Rights will be attached to all Common Stock certificates representing shares
then outstanding, and no separate Rights Certificates will be distributed. Subject to certain
exceptions specified in the Rights Agreement, the Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) ten (10) days following a public announcement
that a person or group of affiliated or associated persons (an Acquiring Person) has acquired, or
obtained the right to acquire, beneficial ownership of 4.95% or more of the outstanding shares of
Common Stock (the Stock Acquisition Date) or (ii) ten (10) business days following the
commencement of a tender offer or exchange offer that would result in a person or group
beneficially owning 4.95% or more of the outstanding shares of Common Stock. The definition of
Acquiring Person excludes any Exempted Person (as defined below). 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 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
-2-
will also constitute the transfer of the Rights associated with the Common Stock represented
by such certificate.
Any person who, together with all affiliates and associates of such person, is the beneficial
owner of Common Stock, options and/or warrants exercisable for shares of Common Stock representing
4.95% or more of the shares of Common Stock outstanding on June 17, 2009, will be an Exempted
Person. However, any such person will no longer be deemed to be an Exempted Person and shall be
deemed an Acquiring Person if such person, together with all affiliates and associates of such
person, becomes the beneficial owner (and so long as such person continues to be the beneficial
owner of 4.95% or more of the then outstanding shares of Common Stock), of additional securities
representing 1,000 or more shares of Common Stock, except (x) pursuant to equity compensation
awards granted to such person by the Company or options or warrants outstanding and beneficially
owned by such person as of June 17, 2009, or as a result of an adjustment to the number of shares
of Common Stock represented by such equity compensation award pursuant to the terms thereof or (y)
as a result of a stock split, stock dividend or the like. In addition, any person who, together
with all affiliates and associates of such person, becomes the beneficial owner of Common Stock,
options and/or warrants exercisable for shares of Common Stock representing 4.95% or more of the
shares of Common Stock then outstanding as a result of a purchase by the Company or any of its
subsidiaries of shares of Common Stock will also be an Exempted Person. However, any such person
will no longer be deemed to be an Exempted Person and will be deemed to be an Acquiring Person if
such person, together with all affiliates and associates of such person, becomes the beneficial
owner, at any time after the date such person became the beneficial owner of 4.95% or more of the
then outstanding shares of Common Stock, of additional securities representing 1,000 or more shares
of Common Stock, except if such additional securities are acquired (x) pursuant to the exercise of
options or warrants to purchase Common Stock outstanding and beneficially owned by such person as
of the date such person became the beneficial owner of 4.95% or more of the then outstanding shares
of Common Stock or as a result of an adjustment to the number of shares of Common Stock for which
such options or warrants are exercisable pursuant to the terms thereof, or (y) as a result of a
stock split, stock dividend or the like. In addition, any person who, together with all affiliates
and associates of such person, is the beneficial owner of Common Stock, options and/or warrants
exercisable for shares of Common Stock representing 4.95% or more of the shares of Common Stock
outstanding, and whose beneficial ownership would not, as determined by the Board of Directors of
the Company in its sole discretion, jeopardize or endanger the availability of the Company of its
NOLs, will be an Exempted Person. However, any such person will cease to be an Exempted Person
if (x) such person ceases to beneficially own 4.95% or more of the shares of the then outstanding
Common Stock or (y) the Board of Directors of the Company, in its sole discretion, makes a contrary
determination with respect to the effect of such persons beneficial ownership (together with all
affiliates and associates of such person) with respect to the availability to the Company of its
NOLs. A purchaser, assignee or transferee of the shares of Common Stock (or options or warrants
exercisable for Common Stock) from an Exempted Person will not thereby become an Exempted Person,
except that a transferee from the estate of an Exempted Person who receives Common Stock as a
bequest or inheritance from an Exempted Person shall be an Exempted Person so long as such
transferee continues to be the beneficial owner of 4.95% or more of the then outstanding shares of
Common Stock.
-3-
The Rights are not exercisable until the Distribution Date and will expire on the earliest of
(i) the close of business on July 16, 2019, (ii) the time at which the Rights are redeemed pursuant
to the Rights Agreement, (iii) the time at which the Rights are exchanged pursuant to the Rights
Agreement, (iv) the repeal of Section 382 of the Code or any successor statute if the Board of
Directors of the Company determines that the Rights Agreement is no longer necessary or desirable
for the preservation of certain tax benefits, (v) the beginning of a taxable year of the Company to
which the Board of Directors of the Company determines that certain tax benefits may not be carried
forward, or (vi) the first anniversary of adoption of the Rights Agreement if shareholder approval
of the Rights Agreement has not been received by or on such date. At no time will the Rights have
any voting power.
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.
Thereafter, the separate Rights Certificates alone will represent the Rights. Except 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 an Acquiring Person becomes the beneficial owner of 4.95% or more of the then
outstanding shares of Common Stock, each holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other
securities of the Company), having a value equal to two times the exercise price of the Right. The
exercise price is the Purchase Price times the number of Units associated with each Right
(initially, one). Notwithstanding any of the foregoing, following the occurrence of an Acquiring
Person becoming such (the Flip-In Event), 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. However, Rights are not exercisable following the occurrence of a Flip-In Event until
such time as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $100.00 per Right, each Right not owned by an Acquiring
Person (or by certain related parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $200.00 worth of Common Stock (or other consideration, as
noted above) for $100.00. If the Common Stock at the time of exercise had a market value per share
of $20.00, the holder of each valid Right would be entitled to purchase ten (10) shares of Common
Stock for $100.00.
In the event that, at any time following the Stock Acquisition Date, (i) the Company engages
in a merger or other business combination transaction in which the Company is not the surviving
corporation; (ii) the Company engages in a merger or other business combination transaction in
which the Company is the surviving corporation and the Common Stock is changed or exchanged; or
(iii) 50% or more of the Companys assets, cash flow or earning power is sold or transferred, each
holder of a Right (except Rights which have previously been voided as set forth above) shall
thereafter have the right to receive, upon exercise of the Right, common stock of the acquiring
company having a value equal to two times the exercise price of the Right. The events set forth in
this paragraph and in the second preceding paragraph are referred to as the Triggering Events.
-4-
The Purchase Price payable, and the number of Units 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 adjustments in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No fractional Units 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 after the Stock Acquisition Date, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by an Acquiring Person), in whole or in part, at an
exchange ratio equal to (i) a number of shares of Common Stock per Right with a value equal to the
spread between the value of the number of shares of Common Stock for which the Rights may then be
exercised and the Purchase Price or (ii) if prior to the acquisition by the Acquiring Person of 50%
or more of the then outstanding shares of Common Stock, one share of Common Stock per Right
(subject to adjustment).
At any time until ten (10) days following the Stock Acquisition Date, the Company may redeem
the Rights in whole, but not in part, at a price of $0.001 per Right. Immediately upon the action
of the Board of Directors ordering redemption of the Rights, the Rights will terminate and the only
right of the holders of Rights will be to receive the $0.001 redemption price.
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 Common Stock (or other consideration) of the Company as set forth above or in the
event the Rights are redeemed.
Other than those 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 order to cure any ambiguity, 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.
The Rights Agreement between the Company and the Rights Agent that specifies the terms of the
Rights is included as Exhibit 1, and is incorporated herein by reference. This description of the
Rights does not purport to be complete and is qualified in its entirety by reference to Exhibit 1
hereto.
-5-
Item 2. Exhibits.
The following exhibits are included with this report or incorporated herein by reference:
|
|
|
Number |
|
Exhibit |
|
|
|
1
|
|
Section 382 Rights Agreement dated as of June 17, 2009, by and between the Company and the
Rights Agent Incorporated by reference to Exhibit 4.1 to the Companys Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 19, 2009. |
-6-
SIGNATURES
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, thereunto duly authorized.
|
|
|
|
|
|
TOLL BROTHERS, INC.
(Registrant)
|
|
Date: June 19, 2009 |
By: |
/s/
Joseph R. Sicree
|
|
|
|
Name: |
Joseph R. Sicree |
|
|
|
Title: |
Senior Vice President and
Chief Accounting Officer |
|
|
-7-