SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 15, 2001
APOGENT TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Wisconsin 1-11091 22-2849508
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
48 Congress Street
Portsmouth, New Hampshire 03801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 603.433.6131
_______________________
(Former name or former address, if changed since last report.)
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* This report updates and supersedes the description of the Registrant's Common
Stock, par value $0.01 per share, contained in the Registrant's Current Report
on Form 8-K dated July 13, 1998, which updated and superseded the description
contained in the Registrant's Registration Statement on Form 8-B dated January
13, 1994. It also includes a general description of the Registrant's associated
preferred stock purchase rights, which are registered pursuant to the
Registrant's (then named Sybron International Corporation) Registration
Statement on Form 8-A dated December 11, 2000 but does not supersede the
description in the Form 8-A.
ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE
Updated Description of Capital Stock:
The following "Description of Capital Stock" is filed for the purpose of
updating and superseding the description of the capital stock of Apogent
Technologies Inc. (formerly "Sybron International Corporation") contained in its
Current Report on Form 8-K dated July 13, 1998. It also includes a general
description of Apogent's associated preferred stock purchase rights, which are
registered pursuant to the Sybron International Corporation Registration
Statement on Form 8-A dated December 11, 2000.
DESCRIPTION OF CAPITAL STOCK
This summary highlights selected information about our capital stock and
the associated rights, and may not contain all of the information that is
important to you. Under our articles of incorporation we are currently
authorized to issue up to 250,000,000 shares of a single class of common stock,
par value one cent ($0.01) per share, and 20,000,000 shares of preferred stock,
par value one cent ($0.01) per share. As of November 14, 2001, we had
106,127,546 shares of common stock outstanding. At that date, no shares of
preferred stock were outstanding, but 2,500,000 shares of Series A Preferred
Stock were reserved for issuance upon exercise of the rights issued pursuant to
our shareholder rights agreement discussed below. We encourage you to read our
articles of incorporation, our bylaws, and our shareholder rights agreement that
creates the rights to acquire shares of our preferred stock upon the occurrence
of certain events because they, and not this summary, define the rights of
holders of common stock and the associated rights. We have filed our articles of
incorporation, our bylaws and the rights agreement with the SEC and they are
incorporated by reference as exhibits to this report.
PREFERRED STOCK
Under our articles of incorporation, preferred stock may be issued from
time to time in one or more series and may have such voting powers, redemption
rights, dividend rights, rights upon dissolution or distribution of assets,
conversion or exchange rights, designations, preferences and relative
participating, optional or other special rights, if any, and such
qualifications, limitations and restrictions thereof, as shall be provided by
resolution of the board of directors.
COMMON STOCK
Voting Rights. Subject to the rights granted to any class or series of
preferred stock, each holder of common stock is entitled to one vote for each
share held on all matters to be voted upon by the shareholders. Holders of
shares of common stock are not entitled to cumulate their votes in the election
of directors. Directors are elected by a plurality of the votes cast. Generally,
unless a different vote is required by the articles of incorporation, the bylaws
or Wisconsin law, all matters to be voted on by shareholders must be approved by
a majority of the votes cast on the matter at a
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meeting at which a quorum is present, subject to any voting rights granted to
holders of then-outstanding preferred stock. Except as otherwise provided by
law, and subject to any voting rights granted to holders of any outstanding
preferred stock, amendments to the portions of our articles of incorporation
relating to the powers, number and term of directors (including provisions for
their election and removal), provisions regarding the adoption, amendment or
repeal of the bylaws and provisions regarding special shareholders meetings and
voting requirements to change those portions of our articles of incorporation
require the affirmative vote of the holders of at least two-thirds of the votes
entitled to be cast on the matter at any annual or special meeting of the
shareholders. Our articles of incorporation also provide that the shareholders
may not adopt, amend, alter or repeal the bylaws except by the affirmative vote
of the holders of at least two-thirds of the votes entitled to be cast on the
matter at any annual or special meeting of the shareholders.
Dividends. Subject to the rights of any holders of preferred stock, any
applicable restrictions on the payment of dividends and the requirements of
applicable law, our board of directors may declare dividends on the common stock
from time to time, in which the holders of the common stock will share ratably.
Liquidation and Dissolution. Subject to the rights of any holders of
preferred stock, if Apogent is liquidated or dissolved, the holders of the
common stock will be entitled to share in the assets available for distribution
to shareholders in proportion to the amount of common stock they own. The amount
available for common shareholders is calculated after the payment of
liabilities.
Assessability. When the corporation has received the consideration for
which the board of directors authorized the issuance of shares, the shares
issued for that consideration are fully paid and nonassessable. However,
shareholders are subject to personal liability under Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law, as judicially interpreted, for debts
owing to employees for services performed for the corporation, but not exceeding
six months' service in any one case.
Other Rights. Holders of the common stock, as such, have no right to:
. convert the stock into any other security;
. have the stock redeemed; or
. purchase additional stock or maintain their proportionate ownership
interest.
Transfer Agent and Registrar. EquiServe Trust Company, N.A. is the transfer
agent and registrar for the common stock.
RIGHTS ASSOCIATED WITH THE COMMON STOCK
As of December 12, 2000, our board of directors declared a dividend of one
preferred stock purchase right for each outstanding share of common stock. Each
right entitles the registered holder to purchase from us one one-hundredth of
one share (a "Unit") of Series A Preferred Stock, par value $0.01 per share (the
"Series A Preferred Stock") at a purchase price of $140 per Unit,
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subject to adjustment. The description and terms of the rights are set forth in
a rights agreement between Apogent and EquiServe Trust Company, N.A. (formerly
Fleet National Bank), as rights agent.
As with most shareholder rights agreements, the terms of our rights
agreement are complex and not easily summarized, particularly as they relate to
the acquisition of our common stock and the exercisability of the rights. This
summary may not contain all of the information that is important to you.
Accordingly, if you want more complete information, you should read the rights
agreement in its entirety.
The rights are attached to all common stock certificates representing
outstanding shares, and no separate rights certificates have been distributed.
The rights will separate from the common stock and be represented by separate
certificates approximately 10 business days after someone acquires or commences
a tender offer for 15% or more of our outstanding common stock.
After the rights separate from the common stock, certificates representing
the rights will be mailed to record holders of the common stock. Once
distributed, the rights certificates alone will represent the rights.
All shares of common stock issued prior to the date the rights separate
from the common stock will be issued with the rights attached. The rights are
not exercisable until the date the rights separate from the common stock. The
rights will expire on December 12, 2010, unless earlier redeemed or exchanged by
Apogent.
The Series A Preferred Stock. Because of the nature of the dividend,
liquidation and voting rights of the Series A Preferred Stock, the value of one
one-hundredth share interest in a share of Series A Preferred Stock purchasable
upon exercise of each right should approximate the value of one share of our
common stock. Each preferred share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share and an aggregate dividend of 100
times the dividend declared per share of Apogent common stock. If there is a
liquidation of Apogent, the holders of the Series A Preferred Stock will be
entitled to a minimum preferential liquidation payment of $100 per share. Each
preferred share will have 100 votes and will vote together with the Apogent
common stock, except as otherwise provided in the rights agreement or by law. If
there is any merger, consolidation or other transaction in which shares of
Apogent common stock are exchanged, each share of Series A Preferred Stock will
be entitled to receive 100 times the amount received per share of Apogent common
stock. These rights are protected by customary anti-dilution provisions.
Triggering Events. If an acquiror obtains or has the right to obtain 15% or
more of the outstanding shares of our common stock, except in connection with an
offer for all outstanding shares of common stock which our independent directors
determine to be fair and not inadequate and otherwise in the best interests of
Apogent and its shareholders, after receiving advice from one or more investment
banking firms (a "qualified offer"), then each right will entitle the holder to
purchase a number of shares of Apogent common stock with a then current market
value of $280 for $140, unless this amount is adjusted (in other words, having a
value equal to two times the exercise price of the right).
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Each right will entitle the holder to purchase a number of shares of common
stock of the acquiror having a then current market value of twice the exercise
price of the right if the acquiror obtains 15% or more of our outstanding common
stock, and any of the following occurs:
. Apogent merges into another entity (other than an entity which
acquired the shares pursuant to a qualified offer);
. an acquiring entity merges into Apogent; or
. Apogent sells more than 50% of its assets, cash flow or earning power.
Under our rights agreement, any rights that are or were owned by an
acquiror of more than 15% of our outstanding stock will be void.
After an acquiror obtains 15% or more, but less than 50%, of our
outstanding common stock, our board of directors may, at its option, exchange
all or part of the then outstanding and exercisable rights for shares of common
stock or Series A Preferred Stock. If our board exercises this option, the
exchange ratio will be one share of common stock or one one-hundredth shares of
Series A Preferred Stock per right, adjusted to reflect any stock split, stock
dividend or similar transaction.
Redemption Provisions. Our board of directors may, at its option, redeem
all of the outstanding rights at any time prior to 10 business days following
the acquisition by any person of 15% or more of the outstanding shares of our
common stock, at a redemption price of $.01 per right (subject to adjustment in
some circumstances). The right to exercise the rights will terminate when our
board of directors orders the redemption of the rights, and then the only right
of the holders of the rights will be to receive the redemption price.
Other Matters. Holders of rights have no rights as shareholders, including
the right to vote or receive dividends, simply by virtue of holding the rights.
The rights agreement may be amended by our board of directors without the
approval of the holders of the rights prior to the date the rights separate from
the common stock. However, after that date, the rights agreement may not be
amended in any manner that would adversely affect the interests of the holders
of the rights, excluding the interest of any acquiror. No amendment may be made
at a time when the rights are not redeemable.
The rights may have anti-takeover effects. The rights may cause substantial
dilution to a person or group that attempts to acquire Apogent without
conditioning the offer on redemption of the rights or on a substantial number of
the rights being acquired. The rights should not affect any potential acquiror
willing to make an offer for all of the outstanding common stock at a price that
is fair and not inadequate and otherwise in the best interest of Apogent and its
shareholders. The rights also should not interfere with any merger or other
business combination approved by our board of directors since our board may, at
its option, at any time until 10 business days following
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the date a shareholder acquires 15% or more of our common stock, redeem all the
rights as described above. In addition, the rights should not interfere with a
proxy contest.
ANTI-TAKEOVER EFFECTS OF OUR ARTICLES OF INCORPORATION AND BYLAWS
Our articles of incorporation and bylaws contain provisions that could make
it more difficult to acquire Apogent by means of a tender offer, proxy contest
or otherwise. The description set forth below is intended as a summary only. For
complete information you should read our articles of incorporation and bylaws.
Classified Board of Directors; Number of Directors. Our articles of
incorporation divide the board of directors into three classes. Each class is to
consist as nearly as possible of one-third of the directors. Each director
serves for a term of three years and until his or her successor is elected and
qualified. Under the articles of incorporation, the number of directors
constituting the entire board will be fixed from time to time by the board of
directors, but the number cannot be less than six or more than twelve (plus such
number as may be elected pursuant to the terms of any outstanding preferred
stock).
Removal of Directors by Shareholders; Filling Vacancies. Our articles of
incorporation provide that directors may be removed by the shareholders, but
only for cause and only by the affirmative vote of a majority of the votes then
entitled to be cast in an election of directors. The board of directors, acting
by a majority vote of the directors then in office, may fill any newly created
directorships or vacancies on the board of directors.
Special Meetings. Our articles of incorporation and bylaws provide that
special meetings of shareholders may be called by our chairman of the board or
by a majority of the directors and shall be called if and as required by the
Wisconsin Business Corporation Law upon the proper written demand of
shareholders representing at least 10% of all the votes entitled to be cast on
any issue proposed to be considered at the meeting. Any such demand must contain
a description of the specific purpose or purposes for which the special meeting
is to be held.
Amendment of Bylaws. Our articles of incorporation provide that the board
of directors is authorized to amend our bylaws, subject to the right of
shareholders to amend them, but require the affirmative vote of the holders of
at least two-thirds of the votes entitled to be cast by the outstanding shares
entitled to vote thereon for shareholders to amend the bylaws.
Shareholder Vote Required to Amend Certain Provisions of the Articles of
Incorporation. Our articles of incorporation provide that the affirmative vote
of at least two-thirds of the votes entitled to be cast by the outstanding
shares entitled to vote thereon is required to amend the provisions of the
articles of incorporation referred to above relating to:
. the powers, number and classification of directors;
. the call of special meetings;
. the amendment of the bylaws; and
. the super-majority voting requirements.
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Advance Notice Requirements for Shareholder Proposals and Director
Nominees. Our bylaws require advance notice with regard to business proposed to
be submitted by a shareholder at any annual or special meeting of our
shareholders, including the nomination of candidates for election as directors.
Notice of proposed shareholder business must be timely given in writing to our
corporate secretary prior to the meeting. To be timely, notice must be received
at our principal executive offices within the time frames specified in our
bylaws. The notice must also contain certain information specified in our
bylaws, including, with respect to a director nomination, the written consent of
the nominee to serve as a director if elected. The chairperson of a meeting of
shareholders may refuse to acknowledge a nomination or any business proposed to
be brought before the meeting without compliance with the procedures set forth
in our bylaws.
CERTAIN STATUTORY PROVISIONS
Wisconsin law, under which we are incorporated, contains certain provisions
that may be important when considering the rights of holders of our capital
stock. The description set forth below is intended as a summary only. For
complete information you should review the applicable provisions of the
Wisconsin Business Corporation Law.
Control Share Acquisitions. Wisconsin law provides that, unless a
corporation's articles of incorporation provide otherwise (which ours do not),
the voting power of shares of a "resident domestic corporation" held by any
person (including two or more persons acting as a group) in excess of 20% of the
voting power in the election of directors is limited (in voting on any matter)
to 10% of the full voting power of those shares. Under the present
circumstances, whether Apogent will qualify as a "resident domestic corporation"
will depend upon whether more than 10% of the holders of record of its shares
are Wisconsin residents, or whether more than 10% of its shares are held of
record by Wisconsin residents at the time the issue arises. It is not clear
whether Apogent would qualify as a "resident domestic corporation" if the issue
arose as of the date of this report on Form 8-K. Even if we are a resident
domestic corporation under the statute, this restriction does not apply to
shares acquired directly from us, or in certain specified transactions, or
incident to a transaction in which our shareholders have approved restoration of
the full voting power of the otherwise restricted shares.
Anti-Greenmail Provisions. Wisconsin law restricts the ability of a
resident domestic corporation to repurchase voting shares at above market value
from certain large shareholders, absent approval from the shareholders as a
whole, unless an identical or better offer to purchase is made to all owners of
voting shares and securities which may be converted into voting shares. These
provisions apply during a takeover offer to purchases of more than 5% of the
corporation's shares from a person or group that holds more than 3% of the
corporation's voting shares and has held the shares for less than two years.
Wisconsin law also provides that shareholder approval is required for a
resident domestic corporation, during a takeover offer, to sell or option assets
of the corporation which amount to at least 10% of the market value of the
corporation, unless the corporation has at least three independent directors
(directors who are not officers or employees) and a majority of the independent
directors vote not to have this provision apply to the corporation.
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As noted above, it is not clear whether Apogent would qualify as a resident
domestic corporation for purposes of this statute if the issue arose as of the
date of this report.
Fair Price Provisions. Wisconsin law provides that in addition to any
approval otherwise required, certain mergers, share exchanges or sales, leases,
exchanges or other dispositions involving a resident domestic corporation and
any significant shareholder are subject to a supermajority vote of shareholders
unless certain fair price standards have been met. For this purpose, a
significant shareholder is defined as either a 10% shareholder or an affiliate
of the resident domestic corporation who was a 10% shareholder at any time
within the preceding two years. The super-majority vote that is required by the
statute consists of:
. approval of 80% of the total voting power of the corporation, and
. approval of at least 66 2/3% of the voting power not beneficially
owned by the significant shareholder or its affiliates or associates.
However, a supermajority vote is not required if the following "fair price"
standards are satisfied:
. the consideration is in cash or in the form of consideration used to
acquire the greatest number of shares, and
. the amount of the consideration equals the greater of:
. the highest price paid by the significant shareholder within the
prior two-year period;
. in the case of a tender offer, the market value of the shares on
the date the significant shareholder commences the tender offer;
or
. the highest liquidation or dissolution distribution to which the
shareholders would be entitled.
As noted above, it is not clear whether Apogent would qualify as a resident
domestic corporation for purposes of this statute if the issue arose as of the
date of this report.
Business combination provisions. Wisconsin law restricts resident domestic
corporations from engaging in specified business combinations involving an
"interested stockholder" or an affiliate or associate of an interested
stockholder. For this purpose, an interested stockholder is a shareholder who
beneficially owns at least 10% of the voting power of the outstanding stock of
the resident domestic corporation, or is an affiliate or associate of the
resident domestic corporation and beneficially owned at least 10% of the voting
power of the then outstanding stock within the preceding three years. The
specified business combinations include:
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. a merger or statutory share exchange;
. a sale or other disposition of assets having a market value equal to
at least 5% of the market value of the assets or outstanding stock of
the corporation or representing at least 10% of its earning power or
income;
. the issuance or transfer of stock or rights to purchase stock with a
market value equal to at least 5% of the outstanding stock;
. the adoption of a plan or proposal for liquidation or dissolution;
. receipt by the interested stockholder or the interested stockholder's
affiliates or associates of a disproportionate direct or indirect
benefit or a loan of other financial benefit provided by or through
the resident domestic corporation or its subsidiaries; or
. certain other transactions that have the direct or indirect effect of
materially increasing the proportionate share of voting stock
beneficially owned by the interested stockholder or the interested
stockholder's affiliates or associates.
For a period of three years following the date that the interested
stockholder becomes an interested stockholder, the resident domestic corporation
is prohibited from engaging in any of the specified transactions with an
interested stockholder unless the specified transaction or the purchase of stock
by the interested stockholder is approved by the board of directors of the
resident domestic corporation before the share acquisition date. Following the
three year period, a specified transaction is permitted only if:
. the acquisition of shares by the interested stockholder was approved
by the board of directors of the resident domestic corporation before
the share acquisition date;
. the specified transaction is approved by a majority of the voting
stock of the resident domestic corporation that is not owned by the
interested stockholder; or
. the consideration to be received by the corporation's shareholders
satisfies the "fair price" provisions of the statute as to form and
amount.
As noted above, it is not clear whether Apogent would qualify as a resident
domestic corporation for purposes of this statute if the issue arose as of the
date of this report.
A Wisconsin corporation that is otherwise subject to certain of the
statutes described above may preclude their applicability by an election to that
effect in its articles of incorporation approved by the shareholders.
Conversely, a Wisconsin corporation that is otherwise not subject to certain of
those statutes may choose to make such provisions applicable to it by an
election to that effect in its articles of incorporation approved by the
shareholders. Apogent's articles of incorporation do not contain any such
elections.
* * * * * *
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The foregoing summary is not a complete description of the applicable
provisions of our articles of incorporation or bylaws, of our rights agreement,
or of applicable statutory or other law. This summary is qualified in its
entirety by reference to those documents and provisions.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits:
See the Exhibit Index following the Signature page of this report, which is
incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 15, 2001 APOGENT TECHNOLOGIES INC.
By: /s/ Jeffrey C. Leathe
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Jeffrey C. Leathe
Executive Vice President - Finance,
Chief Financial Officer & Treasurer
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APOGENT TECHNOLOGIES INC.
(THE "REGISTRANT")
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
FORM 8-K CURRENT REPORT
DATED NOVEMBER 15, 2001
EXHIBIT
NUMBER DESCRIPTION INCORPORATED HEREIN BY REFERENCE TO
------- ----------- -----------------------------------
3.1(a) Exhibit 3.1 to the Registrant's Quarterly
Restated Articles of Report on Form 10-Q for the quarter ended
Incorporation of the Registrant December 31, 2000.
3.1(b) Articles of Amendment Exhibit 3.1(b) to the Registrant's Annual
containing Certificate of Report on Form 10-K for the fiscal year ended
Designation, Preferences and September 30, 2000
Rights of Series A Preferred
Stock
3.2 Bylaws of the Registrant Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended
December 31, 2000.
4.1 Rights Agreement, dated as of Exhibit 1 to the Registrant's Registration
December 11, 2000 Statement on Form 8-A dated December 11, 2000
10 Form of Director and Officer Filed herewith
Indemnification Agreement
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