UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
ALASKA
COMMUNICATIONS SYSTEMS GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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52-2126573
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(State of Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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600 Telephone Avenue, Anchorage, Alaska 99503-6091
(Address of principal executive offices and zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class to be so
registered
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Name of each exchange on which each class is
to be registered
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Series A Junior Participating
Preferred Stock Purchase Rights
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The NASDAQ Stock Market LLC
The NASDAQ Global Select Market
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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), check the following box. ☐
If this form
relates to the registration of a class of securities concurrently with a Regulation A offering, check the following box. ☐
Securities
Act registration statement or Regulation A offering statement file number to which this form relates:
Not applicable
(if applicable)
Securities to
be registered pursuant to Section 12(g) of the Act:
None
ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1.
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Description Of Registrants Securities To Be Registered
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On January 8,
2018, the Board of Directors (the
Board
) of Alaska Communications Systems Group, Inc., a Delaware corporation (the
Company
), approved and adopted a Section 382 Tax Benefits Preservation Plan, dated as of
January 8, 2018, by and between the Company and Computershare Trust Company, N.A., as Rights Agent (the
Section
382 Tax Benefits Preservation Plan
). Pursuant to the Section 382 Tax Benefits
Preservation Plan, the Board declared a dividend of one preferred share purchase right (each, a
Right
) for each outstanding share of common stock, par value $0.01, of the Company (the
Common Stock
). The dividend
is distributable on January 19, 2018 to stockholders of record as of the close of business on January 19, 2018.
The following
is a summary description of the Rights and the other material terms and conditions of the Section 382 Tax Benefits Preservation Plan. This summary is intended to provide a general description only, does not purport to be complete and is
qualified in its entirety by reference to the complete text of the Section 382 Tax Benefits Preservation Plan, a copy of which is filed as Exhibit 4.1 to this Registration Statement on Form
8-A
and is
incorporated herein by reference. All capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Section 382 Tax Benefits Preservation Plan.
The Board adopted the Section 382 Tax Benefits Preservation Plan to diminish the risk that the Companys ability to utilize its net
operating loss carryovers (collectively, the
NOLs
) to reduce potential future federal income tax obligations may become substantially limited. Under the Internal Revenue Code of 1986, as amended (the
Code
), and
the regulations promulgated thereunder by the U.S. Treasury Department, these NOLs may be carried forward in certain circumstances to offset any current and future taxable income and thus reduce federal income tax liability, subject to
certain requirements and restrictions. While the amount and timing of the Companys future taxable income cannot be predicted with any certainty and, accordingly, the Company cannot predict the amount of these NOLs that will ultimately be used
to reduce its income tax liability, to the extent that the NOLs do not otherwise become limited, these NOLs could be a potentially valuable asset to the Company. However, if the Company experiences an ownership change, within the meaning
of Section 382 of the Code (
Section
382
), its ability to utilize the NOLs may be substantially limited, and the timing of the usage of the NOLs could be substantially delayed, which could therefore
significantly impair the value of those assets.
Under Section 382, an ownership change occurs if a stockholder or a
group of stockholders that is deemed to own at least 5% of the Common Stock increases their ownership (individually, or collectively with other such
5-percent
stockholders) by more than 50
percentage points over their lowest ownership percentage within a rolling three-year period. If an ownership change occurs, Section 382 would impose an annual limit on the amount of the Companys NOLs that can be used to offset the
Companys income taxes equal to the product of the total value of the Companys outstanding equity immediately prior to the ownership change
(reduced by certain items specified in Section 382) and the federal long-term
tax-exempt
interest rate in effect for the month of the ownership
change. A number of complex rules apply to calculating this annual limit. If an ownership change were to occur, the limitations imposed by Section 382 could result in a substantial delay in the timing of the usage of the Companys NOLs or
in a material amount of the Companys NOLs expiring unused and, therefore, significantly impair the value of such NOLs. While the Company periodically monitors its NOLs and currently believes that an ownership change that would impair the value
of its NOLs has not occurred, the complexity of Section 382s provisions and the limited knowledge any public company has about the ownership of its publicly-traded stock make it difficult to determine whether an ownership change has in
fact occurred.
The Section 382 Tax Benefits Preservation Plan is intended to act as a deterrent to any person or group acquiring
beneficial ownership of 4.99% or more of the outstanding Common Stock without the approval of the Board. A person who acquires, without the approval of the Board, beneficial ownership (other than as a result of repurchases of stock by the Company,
dividends or distributions by the Company or certain inadvertent actions by stockholders) of 4.99% or more of the outstanding Common Stock (including any ownership interest held by that persons Affiliates and Associates as defined under the
Section 382 Tax Benefits Preservation Plan) could be subject to significant dilution. Stockholders who beneficially own 4.99% or more of the outstanding Common Stock prior to the first public announcement by the Company of the Boards
adoption of the Section 382 Tax Benefits Preservation Plan will not trigger the Section 382 Tax Benefits Preservation Plan so long as they do not acquire beneficial ownership of additional shares of the Common Stock (other than pursuant to
a dividend or distribution paid or made by the Company on the outstanding shares of Common Stock or pursuant to a split or subdivision of the outstanding shares of Common Stock) at a time when they still beneficially own 4.99% or more of such stock.
In addition, the Board retains the sole discretion to exempt any person or group from the penalties imposed by the Section 382 Tax Benefits Preservation Plan.
The Rights
. The Board authorized the issuance of one Right per each outstanding share of the Common Stock distributable to the
Companys stockholders of record as of the close of business on January 19, 2018. One Right will also be issued together with each share of the Common Stock issued after January 19, 2018 but before the Distribution Date (as defined
below) and, in certain circumstances, after the Distribution Date. Subject to the terms, provisions and conditions of the Section 382 Tax Benefits Preservation Plan, if the Rights become exercisable, each Right would initially represent the
right to purchase from the Company one
one-thousandth
of a share (a
Unit
) of a newly-designated series of preferred stock, Series A Junior Participating Preferred Stock, par value $0.01 per
share, of the Company (the
Series A Preferred Stock
) for a purchase price of $5.50 (the
Purchase Price
). If issued, each Unit of Series A Preferred Stock would give the stockholder approximately the same
dividend, voting and liquidation rights as does one share of the Common Stock. However, prior to exercise, a Right does not give its holder any rights as a stockholder of the Company, including, without limitation, any dividend, voting or
liquidation rights. A copy of the Certificate of Designation filed by the Company with the Secretary of State of the State of Delaware to designate the Series A Preferred Stock is filed as Exhibit 4.3 to this Registration Statement on Form
8-A
and is incorporated herein by reference.
Acquiring Person
. Under the Section 382 Tax Benefits Preservation Plan, an
Acquiring Person is any person who or which, together with all Affiliates and Associates of such person, is or becomes the beneficial owner of 4.99% or more of the shares of Common Stock outstanding other than as a result of repurchases
of stock by the Company, dividends or distributions by the Company or certain inadvertent actions by stockholders. Beneficial ownership is determined as provided in the Section 382 Tax Benefits Preservation Plan and generally includes, without
limitation, any ownership of securities a person would be deemed to actually or constructively own for purposes of Section 382 of the Code or the Treasury Regulations promulgated thereunder. The Section 382 Tax Benefits Preservation Plan
provides that the following shall not be deemed an Acquiring Person thereunder: (i) the Company or any subsidiary of the Company; (ii) any employee benefit plan or employee stock plan of the Company or any subsidiary of the Company, or any
person organized, appointed, established or holding shares of Common Stock of the Company for or pursuant to the terms of any such plan; (iii) any person who would otherwise be an Acquiring Person upon the first public announcement by the
Company of the adoption of the Section 382 Tax Benefits Preservation Plan, unless and until such person, or any Affiliate or Associate of such person, acquires beneficial ownership of any additional shares of Common Stock of the Company after
the first public announcement by the Company of the adoption of the Plan (other than pursuant to a stock split, stock dividend or similar transaction) at a time when such person still beneficially owns 4.99% or more of the Common Stock;
(iv) any direct public group within the meaning of Treasury Regulations
Section 1.382-2T(j)(2)(ii);
(v) any person who as the result of an acquisition of shares of Common Stock by the
Company (or any subsidiary of the Company, or any person organized, appointed, established or holding shares of Common Stock of the Company for or pursuant to the terms of any such plan) which, by reducing the number of shares of Common Stock of the
Company outstanding, increases the proportionate number of shares of Common Stock of the Company beneficially owned by such person to 4.99% or more of the shares of Common Stock of the Company then outstanding; (vi) any person who or which,
within ten (10) business days of being requested by the Company to advise it regarding the same, certifies to the Company that such person acquired shares of Common Stock in excess of 4.99% inadvertently or without knowledge of the terms of the
Rights and who or which, together with all Affiliates and Associates, thereafter within ten (10) business days following such certification reduces such persons (together with its Affiliates and Associates) beneficial
ownership to less than 4.99% of the shares of Common Stock then outstanding;
provided, however,
that (x) if the person requested to so certify fails to do so within ten (10) business days or breaches or violates such certification,
then such person shall become an Acquiring Person immediately after such ten (10) business day period or such breach or violation or (y) if the person together with its Affiliates and Associates fails to reduce beneficial ownership to less
than 4.99% within ten (10) business days following such certification, then such person shall become an Acquiring Person immediately after such ten (10) business day period; and (vii) any person who the Board determines, in its sole
discretion, prior to the time such person would otherwise be an Acquiring Person, should be permitted to become the beneficial owner of up to a number of the shares of Common Stock determined by the Board (the
Exempted Number
) and
be exempted from being an Acquiring Person, unless and until such person acquires beneficial ownership of shares of Common Stock of the Company in excess of the Exempted Number (other than pursuant to a stock split, stock dividend or similar
transaction) in which case such person shall be an Acquiring Person.
A person (other than any direct public group within the meaning of Treasury
Regulations
Section 1.382-2T(j)(2)(ii))
will be treated as the beneficial owner of 4.99% or more shares of the Common Stock if, in the determination of the Board, that person (individually, or together
with other persons) would be treated as a
5-percent
stockholder for purposes of Section 382 (substituting 4.99 for 5 each time five or 5 is used
in or for purposes of Section 382).
Initial Exercisability
. The Rights will not be exercisable until the close of business on
the earlier to occur of (i) the tenth (10th) calendar day after the day on which a public announcement or filing that a person or group of Affiliated or Associated persons has become an Acquiring Person, or (ii) the tenth
(10th) calendar day (or such later date as may be specified by the Board prior to such time as any person becomes an Acquiring Person) after the commencement of a tender or exchange offer by or on behalf of a person the consummation of which would
result in such person, together with its Affiliates and Associates, becoming an Acquiring Person, irrespective of whether any shares are actually purchased pursuant to such offer (the earlier of these dates is called the
Distribution
Date
).
Until the Distribution Date, the Common Stock certificates or the ownership statements issued with respect to
uncertificated shares of Common Stock will evidence the Rights. Any transfer of shares of Common Stock prior to the Distribution Date will also constitute a transfer of the associated Rights. After the Distribution Date, separate rights certificates
will be issued and the Rights may be transferred other than in connection with the transfer of the underlying shares of Common Stock unless and until the Board has determined to effect an exchange pursuant to the Section 382 Tax Benefits
Preservation Plan (as described below).
Flip-In
Event
. In the event that a person becomes
an Acquiring Person, each holder of a Right, other than Rights that are or, under certain circumstances, were beneficially owned by the Acquiring Person (which will thereupon become void), will thereafter have the right to receive upon exercise of a
Right and payment of the Purchase Price, and subject to the terms and conditions of the Section 382 Tax Benefits Preservation Plan, a number of shares of the Common Stock having a market value of two times the Purchase Price.
Redemption.
At any time until the close of business on the tenth (10th) calendar day after the day a public announcement or a filing is
made indicating that a person has become an Acquiring Person (and prior to the giving of notice of the exchange or redemption, as applicable to the holders of the Rights), or thereafter under certain circumstances, the Company may redeem the Rights
in whole, but not in part, at a price of $0.001 per Right (the
Redemption Price
). The redemption of the Rights may be made effective at such time, on such basis and with such conditions as the Board in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of Rights will be to receive the Redemption Price.
Exchange
. At any time after a person becomes an Acquiring Person, the Board may exchange all or part of the outstanding Rights (other
than those held by an Acquiring Person) for shares of Common Stock at an exchange rate of one share of Common Stock, or a fractional share of Series A Preferred Stock (or of a share of a similar class or series of the Companys preferred stock
having similar rights, preferences and privileges) of equivalent value, per Right (subject to adjustment).
Expiration
. The Rights and the Section 382 Tax Benefits Preservation Plan will expire
upon the earliest of (i) the date on which all of the Rights are redeemed, (ii) the date on which the Rights are exchanged, (iii) the consummation of a reorganization transaction entered into by the Company resulting in the imposition
of stock transfer restrictions that the Board determines will provide protection for the Companys tax attributes similar to that provided by the Section 382 Tax Benefits Preservation Plan, (iv) the close of business on the effective
date of the repeal of Section 382, or any other change, if the Board determines that the Section 382 Tax Benefits Preservation Plan, is no longer necessary or desirable for the preservation of the Companys tax attributes,
(v) the date on which the Board otherwise determines that the Section 382 Tax Benefits Preservation Plan is no longer necessary to preserve the Companys tax attributes, (vi) the beginning of a taxable year of the Company to
which the Board determines that none of the Companys tax attributes may be carried forward, and (vii) the close of business on January 8, 2021.
Preferred Stock Purchasable Upon Exercise of Rights
. After the Distribution Date, each Right will entitle the holder to purchase, for
the Purchase Price, and subject to the terms and conditions of the Section 382 Tax Benefits Preservation Plan, one
one-thousandth
of a share of the Series A Preferred Stock having economic and other terms
similar to that of one share of Common Stock. This portion of a share of Series A Preferred Stock is intended to give a stockholder approximately the same dividend, voting and liquidation rights as would one share of Common Stock, and should
approximate the value of one share of Common Stock.
Anti-Dilution Provisions
. The Board may adjust the Purchase Price, the number
of shares of Series A Preferred Stock or other securities or assets issuable and the number of outstanding Rights to prevent dilution that may occur as a result of certain events, including among others, a stock dividend, a stock split or a
reclassification of the Series A Preferred Stock or the Common Stock.
Amendments
. Until the close of business on the tenth (10th)
calendar day after the day a public announcement or a filing is made indicating that a person has become an Acquiring Person, or thereafter under certain circumstances, the Company may amend the Rights in any manner. The Company may also amend the
Section 382 Tax Benefits Preservation Plan after the close of business on the tenth (10th) calendar day after the day a public announcement or filing is made indicating that a person has become an Acquiring Person, to cure ambiguities, to
correct defective or inconsistent provisions to otherwise change or supplement the Tax Benefits Preservation Plan in any manner that does not adversely affect the interests of holders of the Rights.
Tax Consequences.
The issuance of the Rights should not be taxable to the Company or to stockholders under presently existing federal
income tax law, and will not change the way in which stockholders can presently trade the Companys shares of Common Stock. However, if the Rights become exercisable or if the Rights are redeemed, stockholders may recognize taxable income,
depending on the circumstances then existing.
Stockholder Ratification.
While the Section 382 Tax Benefits Preservation Plan was
effective upon adoption by the Board, and while not required by the Companys governing documents or by applicable law, as a matter of good corporate governance, the Company intends to submit the Section 382 Tax Benefits Preservation Plan
for stockholder ratification at its 2018 Annual Meeting of Stockholders.
The documents listed below are filed as exhibits to this Registration
Statement:
EXHIBIT INDEX
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Exhibit
No.
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Description
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4.1
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Section 382 Tax Benefits Preservation Plan, dated as of January 8, 2018 by and between Alaska Communications Systems Group, Inc. and Computershare Trust Company, N.A., as Rights Agent (incorporated by reference from
Exhibit 4.1 to the Current Report on Form
8-K
filed by the Company with the Securities and Exchange Commission on January 9, 2018).
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4.2
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Amended and Restated Certificate of Incorporation of Alaska Communications Systems Group, Inc. (incorporated by reference from Exhibit 3.1 of Alaska Communications Systems Group, Inc.s Form
S-1/A
File
No. 333-888753
filed with the SEC on November 17, 1999).
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4.3
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Certificate of Designation of Series A Junior Participating Preferred Stock of Alaska Communications Systems Group, Inc. (incorporated by reference from Exhibit 3.1 to the Current Report on Form
8-K
filed by the Company with the Securities and Exchange Commission on January 9, 2018).
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4.4
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Amended and Restated
By-laws
of Alaska Communications Systems Group, Inc. (incorporated by reference from Exhibit 3.1 of Alaska Communications Systems Group, Inc.s Current Report on Form
8-K
filed with the SEC on December 22, 2017).
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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.
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ALASKA COMMUNICATIONS SYSTEMS GROUP, INC.
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(Registrant)
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Date: January 9, 2018
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/s/ Leonard A. Steinberg
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Leonard Steinberg
Corporate
Secretary
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