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
(Exact name of registrant as specified in its charter)
INDIANA 35-1927379
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
285 WEST CENTRAL PARKWAY
ALTAMONTE SPRINGS, FLORIDA 32714
(Address of principal executive offices) (Zip Code)
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
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: Not Applicable
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
CLASS A COMMON STOCK, $.01 PAR VALUE
(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
AUTHORIZED SHARES
The Registrant's authorized shares consist of 15,000,000 shares of Class
A Common Stock, $0.01 par value ("Class A Common Stock"), 40,000,000 shares of
Class B Common Stock, $0.01 par value ("Class B Common Stock" and, together
with the Class A Common Stock, "Common Stock"), and 5,000,000 shares of
Preferred Stock, without par value ("Preferred Stock"). As of December 6,
1998, there were 10,214,286 shares of Class A Common Stock and 2,301,476 shares
of Class B Common Stock, or an aggregate of 12,515,762 shares of Common Stock,
outstanding. No shares of Preferred Stock have been issued as of the date of
this Registration Statement. Shares of the Class B Common Stock have been
registered under the Securities Act of 1933, as amended, by means of a
Registration Statement on Form S-1 (Registration No. 333-34463) and are listed
on the Nasdaq National Market System under the symbol "PHCC."
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 Bindley Western
Industries, Inc.; or (ii) family members of the transferor, or trusts for the
benefit of or entities controlled by the transferor or family members of the
transferor.
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 Registrant'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
Registrant'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 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. 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 Registrant can elect all the
directors up for election, if they so choose. In the event of liquidation,
dissolution or winding up of the Registrant, 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 Registrant, making removal of the present
management of the Registrant 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 Registrant by means of a merger, tender offer, proxy contest or
otherwise, and thereby protect the continuity of the Registrant'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 Registrant has any
preemptive right to subscribe to any securities of the Registrant of any kind
or class.
CERTAIN PROVISIONS OF RESTATED ARTICLES OF INCORPORATION AND BY-LAWS
Certain provisions of the Registrant's Restated Articles of Incorporation
and By-Laws may delay or make more difficult unsolicited acquisitions or
changes of control of the Registrant. Such provisions could have the effect of
discouraging third parties from making proposals involving an unsolicited
acquisition or change in control of the Registrant, although such proposals, if
made, might be considered desirable by a majority of the Registrant'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 Registrant 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; (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 Registrant'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 Registrant 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 Registrant'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 Registrant 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 Registrant'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 Registrant 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
Registrant, 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 Registrant's capital stock or of Bindley
Western Industries, Inc. on August 25, 1997.
CERTAIN PROVISIONS OF INDIANA LAW
The Indiana Business Corporation Law (the "IBCL") applies to the
Registrant 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 Registrant. Such
provisions also may have the effect of preventing changes in the management of
the Registrant. 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 Registrant's Restated Articles of Incorporation and By-Laws do not
exclude the Registrant 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 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 Registrant's Restated
Articles of Incorporation do not exclude the Registrant 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 Registrant. 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 A Common Stock is Harris Trust and
Savings Bank.
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ITEM 2. EXHIBITS.
Pursuant 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)).
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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: December 10, 1998
PRIORITY HEALTHCARE CORPORATION
By: /S/ ROBERT L. MYERS
Robert L. Myers
President and Chief Executive
Officer
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INDEX TO EXHIBITS
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EXHIBIT NO. DESCRIPTION
<S> <C>
(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)).
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