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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Priority Healthcare Corporation
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(Exact name of registrant as specified in its charter)
Indiana 35-1927379
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
285 West Central Parkway
Altamonte Springs, Florida 32714
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class Name of each exchange on which
to be so registered each class is to be registered
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NONE NONE
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. [ ]
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. [X]
Securities Act registration statement file number to which this form
relates: 333-34463
Securities to be registered pursuant to Section 12(g) of the Act:
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Class B Common Stock, $.01 par value
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
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A description of the Registrant's Class B Common Stock, $.01 par value
per share, to be registered hereunder is set forth under the heading
"Description of Capital Stock" on pages 48-51 of Amendment No. 2 to the
Registrant's Registration Statement on Form S-1 (Registration No. 333-34463),
which description is incorporated herein by reference.
Item 2. Exhibits.
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Pursuant to Instruction I to the Instructions as to Exhibits to Form
8-A, the following exhibits are being filed herewith:
(1) Restated Articles of Incorporation of the Registrant
(incorporated herein by reference from Exhibit 3-A to the
Registrant's Registration Statement on Form S-1 (Registration
No. 333-34463)).
(2) By-Laws of the Registrant, as amended August 25, 1997
(incorporated herein by reference from Exhibit 3-B to the
Registrant's Registration Statement on Form S-1 (Registration
No. 333-34463)).
(3) Articles of Restatement of the Restated Articles of
Incorporation of the Registrant (incorporated herein by
reference from Exhibit 3-C to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-34463)).
(4) Section entitled "Description of Capital Stock" contained on
pages 48-51 of Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-34463).
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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.
Dated: October 20, 1997
PRIORITY HEALTHCARE CORPORATION
By: /s/ ROBERT L. MYERS
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Robert L. Myers
President and Chief Executive Officer
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INDEX TO EXHIBITS
Exhibit No. Description
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(1) Restated Articles of Incorporation of the Registrant (incorporated
herein by reference from Exhibit 3-A to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-34463)).
(2) By-Laws of the Registrant, as amended August 25, 1997
(incorporated herein by reference from Exhibit 3-B to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-34463)).
(3) Articles of Restatement of the Restated Articles of Incorporation
of the Registrant (incorporated herein by reference from Exhibit
3-C to the Registrant's Registration Statement on Form S-1
(Registration No. 333-34463)).
(4) Section entitled "Description of Capital Stock" contained on pages
48-51 of Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-34463).
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EXHIBIT 4
DESCRIPTION OF CAPITAL STOCK
Authorized Shares
The Company's authorized shares consist of 15,000,000 shares of Class A
Common Stock, $0.01 par value, 40,000,000 shares of Class B Common Stock, $0.01
par value, and 5,000,000 shares of Preferred Stock, without par value. Based on
the number of shares of Class A Common Stock outstanding as of August 25, 1997,
after giving effect to the sale of the 2,000,000 shares of Class B Common Stock
offered hereby, there will be 10,214,286 shares of Class A Common Stock and
2,000,000 shares of Class B Common Stock, or an aggregate of 12,214,286 shares
of Common Stock, outstanding upon completion of the offering. No shares of
Preferred Stock have been issued as of the date of this Prospectus.
Common Stock
The two classes of Common Stock entitle holders to the same rights and
privileges, except that holders of shares of Class A Common Stock are entitled
to three votes per share on all matters submitted to a vote of holders of Common
Stock, and holders of shares of Class B Common Stock are entitled to one vote
per share on such matters. The two classes of Common Stock vote together as a
single class on all matters except as otherwise required by applicable law.
The Class A Common Stock will automatically be converted into shares of
Class B Common Stock on a share-for-share basis upon any transfer or purported
transfer to any person other than: (i) a dividend or other distribution of the
shares of Class A Common Stock to the shareholders of BWI; or (ii) family
members of the transferee, or trusts for the benefit of or entities controlled
by the transferee or family members of the transferee.
Except as set forth below (and as provided by law), all matters submitted
to a vote of shareholders will be voted on by holders of Class A Common Stock
and Class B Common Stock voting together as a single class. Holders of
outstanding shares of Class A Common Stock and Class B Common Stock,
respectively, vote separately as a class with respect to certain amendments to
the Company's Restated Articles of Incorporation. These amendments would
include changes in the aggregate number of authorized shares of a class, an
exchange or reclassification of shares of one class into another class, or other
changes to the designation, rights, preferences or limitations of a class.
Subject to any preferential rights of any Preferred Stock created by the
Company's Board of Directors, each outstanding share of Common Stock will be
entitled to such dividends as may be declared from time to time by the Board of
Directors. Holders of shares of Class A Common Stock and holders of shares of
Class B Common Stock will be treated equally with respect to such dividends,
except that in the case of dividends payable in Common Stock, holders
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of Class A Common Stock may only receive shares of Class A Common Stock and
holders of Class B Common Stock may only receive shares of Class B Common Stock.
See "Dividend Policy." Holders of Common Stock are not entitled to cumulate
their votes in election of directors; therefore, the holders of a majority of
the votes cast in an election of the Board of Directors of the Company can elect
all the directors up for election, if they so choose. In the event of
liquidation, dissolution or winding up of the Company, holders of Common Stock
are entitled to receive on a pro rata basis any assets remaining after provision
for payment of creditors and after payment of any liquidation preferences to
holders of Preferred Stock.
Preferred Stock
The authorized Preferred Stock is available for issuance from time to time
at the discretion of the Board of Directors without shareholder approval. The
Board of Directors has the authority to prescribe for each series of Preferred
Stock it establishes the number of shares in that series, the number of votes
(if any) to which such shares in that series are entitled, the consideration for
such shares in that series and the designations, powers, preferences and
relative, participating, option or other special rights, and such
qualifications, limitations or restrictions of the shares in that series.
Depending upon the rights of such Preferred Stock, the issuance of Preferred
Stock could have an adverse effect on holders of Common Stock by delaying or
preventing a change in control of the Company, making removal of the present
management of the Company more difficult or resulting in restrictions upon the
payment of dividends and other distributions to the holders of Common Stock.
Authorized But Unissued Shares
Indiana law does not require shareholder approval for any issuance of
authorized shares. These additional shares may be used for a variety of
corporate purposes, including future public or private offerings to raise
additional capital or to facilitate corporate acquisitions. One of the effects
of the existence of unissued and unreserved shares may be to enable the Board of
Directors to issue shares to persons friendly to current management, which
issuance could render more difficult or discourage an attempt to obtain control
of the Company by means of a merger, tender offer, proxy contest or otherwise,
and thereby protect the continuity of the Company's management and possibly
deprive the shareholders of opportunities to sell their shares of Common Stock
at prices higher than prevailing market prices.
No Preemptive Rights
No holder of any class of authorized shares of the Company has any
preemptive right to subscribe to any securities of the Company of any kind or
class.
Certain Provisions of Restated Articles of Incorporation and By-Laws
Certain provisions of the Company's Restated Articles of Incorporation and
By-Laws may delay or make more difficult unsolicited acquisitions or changes of
control of the
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Company. Such provisions could have the effect of discouraging third parties
from making proposals involving an unsolicited acquisition or change in control
of the Company, although such proposals, if made, might be considered desirable
by a majority of the Company's shareholders. Such provisions may also have the
effect of making it more difficult for third parties to cause the replacement of
the current management of the Company without the concurrence of the Board of
Directors. These provisions include: (i) the division of the Board of
Directors into three classes, each class serving "staggered" terms of office of
three years (see "Management--Directors and Executive Officers"); (ii) the
availability of authorized shares of stock for issuance from time to time at the
discretion of the Board of Directors (see "--Authorized But Unissued Shares");
(iii) provisions allowing the removal of directors only for cause and only upon
a 66 2/3% shareholder vote, taken at a meeting called for that purpose; (iv)
provisions which require the participation of 80% of the voting power of the
outstanding Common Stock in order for the shareholders to demand the calling of
a special meeting of shareholders; and (v) requirements for advance notice for
raising business or making nominations at shareholders' meetings.
The Company's By-Laws establish an advance notice procedure with regard to
business to be brought before an annual or special meeting of shareholders of
the Company and with regard to the nomination, other than by or at the direction
of the Board of Directors, of candidates for election as directors. Although
the Company's By-Laws do not give the Board of Directors any power to approve or
disapprove shareholder nominations for the election of directors or proposals
for action, they may have the effect of precluding a contest for the election of
directors or the consideration of shareholder proposals if the proper procedures
are not followed, and of discouraging or deterring a third party from conducting
a solicitation of proxies to elect its own slate of directors or to approve its
proposal without regard to whether consideration of such nominees or proposals
might be harmful or beneficial to the Company and its shareholders.
The Restated Articles of Incorporation provide that, in the case of a
merger, sale of assets, issuance of securities, liquidation or reclassification
(a "business combination") involving a beneficial owner of 10% or more of the
voting power of the Company's capital stock (a "Related Person"), or any
affiliate or associate of a Related Person, such business combination must be
approved by (i) 66 2/3% of the voting power of the outstanding voting stock of
the Company and (ii) a majority of the then outstanding voting power of the
voting stock held by shareholders other than the Related Person, unless the
business combination is approved in advance by the Continuing Directors (as
defined in the Restated Articles of Incorporation) or the consideration to be
received by shareholders in the business combination is at least equal to the
highest price paid by the Related Person in acquiring its interest in the
Company, with certain adjustments, and certain other requirements are met. The
term Related Person does not include any person who beneficially owned more than
20% of the voting power of the Company's capital stock or of BWI on August 25,
1997. See "Principal Shareholder."
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Certain Provisions of Indiana Law
The Indiana Business Corporation Law (the "IBCL") applies to the Company as
an Indiana corporation. Under certain circumstances, the following provisions
of the IBCL may delay, prevent or make more difficult unsolicited acquisition or
changes of control of the Company. Such provisions also may have the effect of
preventing changes in the management of the Company. It is possible that such
provisions could make it more difficult to accomplish transactions which
shareholders may otherwise deem to be in their best interests.
Control Share Acquisitions. Pursuant to Sections 23-1-42-1 to 23-1-42-11
of the IBCL, an "acquiring person" who makes a "control share acquisition" in an
"issuing public corporation" may not exercise voting rights on any "control
shares" unless such voting rights are conferred by a majority vote of the
disinterested shareholders of the issuing corporation at a special meeting of
such shareholders held upon the request and at the expense of the acquiring
person. In the event that control shares acquired in a control share
acquisition are accorded full voting rights and the acquiring person acquires
control shares with a majority or more of all voting power, all shareholders of
the issuing corporation have dissenters' rights to receive the fair value of
their shares. Under the IBCL, "control shares" means shares acquired by a
person that, when added to all other shares of the issuing public corporation
owned by that person or in respect to which that person may exercise or direct
the exercise of voting power, would otherwise entitle that person to exercise
voting power of the issuing public corporation in the election of directors
within any of the following ranges: (i) one-fifth or more but less than one-
third; (ii) one-third or more but less than a majority; or (iii) a majority or
more. "Control share acquisition" means, subject to certain exceptions, the
acquisition, directly or indirectly, by any person of ownership of, or the power
to direct the exercise of voting power with respect to, issued and outstanding
control shares. Shares acquired within 90 days or pursuant to a plan to make a
control share acquisition are considered to have been acquired in the same
acquisition. "Issuing public corporation" means a corporation which is organized
in Indiana, has 100 or more shareholders, its principal place of business, its
principal office or substantial assets within Indiana and either (i) more than
10% of its shareholders resident in Indiana, (ii) more than 10% of its shares
owned by Indiana residents or (iii) 10,000 shareholders resident in Indiana.
The above provisions do not apply if, before a control share acquisition is
made, the corporation's articles of incorporation or by-laws (including a board
adopted by-law) provide that said provisions do not apply. The Company's
Restated Articles of Incorporation and By-Laws do not exclude the Company from
the restrictions imposed by such provisions.
Certain Business Combinations. Sections 23-1-43-1 to 23-1-43-23 of the
IBCL restrict the ability of a "resident domestic corporation" to engage in any
combinations with an "interested shareholder" for five years after the
interested shareholder's date of acquiring shares unless the combination or the
purchase of shares by the interested shareholder on the interested shareholder's
date of acquiring shares is approved by the board of directors of the resident
domestic corporation before that date. If the combination was not previously
approved, the interested shareholder may effect a combination after the five-
year period only if such shareholder receives approval from a majority of the
disinterested shares or the offer meets
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certain fair price criteria. For purposes of the above provisions, "resident
domestic corporation" means an Indiana corporation that has 100 or more
shareholders. "Interested shareholder" means any person, other than the
resident domestic corporation or its subsidiaries, who is (i) the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
outstanding voting shares of the resident domestic corporation or (ii) an
affiliate or associate of the resident domestic corporation and at any time
within the five-year period immediately before the date in question was the
beneficial owner of 10% or more of the voting power of the then outstanding
shares of the resident domestic corporation. The above provisions do not apply
to corporations that so elect in an amendment to their articles of incorporation
approved by a majority of the disinterested shares. Such an amendment, however,
would not become effective until 18 months after its passage and would apply
only to stock acquisitions occurring after its effective date. The Company's
Restated Articles of Incorporation do not exclude the Company from the
restrictions imposed by such provisions.
Directors' Duties and Liability. Under Section 23-1-35-1 of the IBCL,
directors are required to discharge their duties: (i) in good faith; (ii) with
the care an ordinarily prudent person in a like position would exercise under
similar circumstances; and (iii) in a manner the directors reasonably believe to
be in the best interests of the Company. However, the IBCL also provides that a
director is not liable for any action taken as a director, or any failure to
act, unless the director has breached or failed to perform the duties of the
director's office and the action or failure to act constitutes willful
misconduct or recklessness. The exoneration from liability under the IBCL does
not affect the liability of directors for violations of the federal securities
laws.
Section 23-1-35-1 of the IBCL also provides that a board of directors, in
discharging its duties, may consider, in its discretion, both the long-term and
short-term best interests of the corporation, taking into account, and weighing
as the directors deem appropriate, the effects of an action on the corporation's
shareholders, employees, suppliers and customers and the communities in which
offices or other facilities of the corporation are located and any other factors
the directors consider pertinent. If a determination is made with the approval
of a majority of the disinterested directors of the board, that determination is
conclusively presumed to be valid unless it can be demonstrated that the
determination was not made in good faith after reasonable investigation. Once
the board has determined that the proposed action is not in the best interests
of the corporation, it has no duty to remove any barriers to the success of the
action, including a rights plan. Section 23-1-35-1 specifically provides that
certain judicial decisions in Delaware and other jurisdictions, which might be
looked upon for guidance in interpreting Indiana law, including decisions that
propose a higher or different degree of scrutiny in response to a proposed
acquisition of the corporation, are inconsistent with the proper application of
that section.
Transfer Agent
The Transfer Agent for the Class B Common Stock is Harris Trust and Savings
Bank.
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