FILE NO: 1-10581
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
AMENDMENT NO. 1 ON
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
---------------------------
BENTLEY PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 59-1513162
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
65 LAFAYETTE ROAD, 3RD FLOOR, 03862
NORTH HAMPTON, NEW HAMPSHIRE (Zip Code)
(Address of principal executive offices)
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:
COMMON STOCK, PAR VALUE $.02 PER SHARE AMERICAN STOCK EXCHANGE
PACIFIC STOCK EXCHANGE
If this form relates to the registration of a class of debt 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 debt securities
pursuant to Section 12(g) of the Exchange Act and is become effective pursuant
to General Instruction A.(d), check the following box. |_|
Securities Act registration statement file
number to which this form relates: REGISTRATION NO. 33-17201
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Amendment No. 1 to Registration Statement on Form 8-A/A amends and
restates the Registration Statement on Form 8-A dated March 15, 1988 filed by
the Registrant.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Our authorized capital stock consists of 35,000,000 shares of a single
class of common stock, par value $.02 per share, and 2,000,000 shares of
preferred stock, par value $1.00 per share. As of October 29, 1999, there were
issued and outstanding an aggregate of 10,123,469 shares of our common stock,
including 645 shares of treasury stock. No shares of preferred stock are
currently issued or outstanding.
COMMON STOCK
Holders of our common stock are entitled to one vote for each share
held on all matters submitted to a vote at a meeting of stockholders and do not
have cumulative voting rights. Accordingly, holders of a majority of the shares
of our common stock may elect all of the directors standing for election.
Holders of our common stock are entitled to receive ratably any dividends
declared by our Board of Directors, subject to the preferential dividend rights
of any outstanding preferred stock. Upon our liquidation, dissolution or
winding-up, holders of our common stock are entitled to receive ratably our net
assets available for distribution after the payment of all debts and other
liabilities, subject to any prior rights of any outstanding preferred stock.
Holders of our common stock have no preemptive, subscription, redemption or
conversion rights. The outstanding shares of our common stock are fully paid and
nonassessable. The rights, preferences, and privileges of holders of our common
stock are subject to, and may be adversely affected by, the rights of holders of
shares of any series of preferred stock that our Board of Directors may
designate and issue in the future.
PREFERRED STOCK
Our Board of Directors is authorized, subject to any limitations
prescribed by law, without further stockholder approval, to issue from time to
time up to an aggregate of 2,000,000 shares of preferred stock, in one or more
series. Each such series of preferred stock shall have such number of shares,
designations, preferences, voting powers, qualifications, restrictions and
special or relative rights or privileges as shall be determined by our Board of
Directors. Such rights and privileges may include, among others, dividend
rights, voting rights, redemptive and sinking fund provisions, liquidation
preferences, conversion rights and preemptive rights.
Our stockholders have granted our Board of Directors authority to issue
preferred stock and to determine its rights and preferences in order to
eliminate delays associated with a stockholder vote on specific issues. The
issuance of preferred stock, while providing desirable flexibility in connection
with possible acquisitions and other corporate purposes, could have the effect
of making it more difficult for a third party to acquire, or of discouraging a
third party from attempting to acquire, a majority of our outstanding voting
stock. No shares of preferred stock are currently issued or outstanding.
However, our Board of Directors is currently contemplating the implementation of
a stockholders rights plan or "poison pill," pursuant to which preferred stock
could be issued.
-2-
<PAGE>
DELAWARE LAW AND CERTAIN CHARTER AND BYLAW PROVISIONS
We are subject to the provisions of Section 203 of the General
Corporation Law of Delaware. Section 203 prohibits a publicly-held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. A "business combination"
includes mergers, asset sales and other transactions resulting in a financial
benefit to the interested stockholder. Subject to certain exceptions, an
"interested stockholder" is a person who, together with affiliates and
associates, owns, or within three years did own, 15% or more of the
corporation's voting stock.
Our Restated Certificate of Incorporation and our Amended and Restated
Bylaws contain various provisions which could have the effect of making it more
difficult for a third party to acquire, or of discouraging a third party from
acquiring, control of us.
For example, our Restated Certificate of Incorporation contains
provisions that state the following:
o our Board of Directors may amend in any manner our bylaws and,
subject to certain exceptions, our shareholders may only amend
our bylaws by an affirmative vote of the holders of at least
two-thirds of the outstanding shares of our common stock;
o newly created directorships and any vacancy on our Board of
Directors will be filled solely by the affirmative vote of a
majority of the remaining directors then in office;
o subject to certain exceptions, directors may be removed only
for cause by the affirmative vote of the holders of at least
two-thirds of the outstanding shares of our common stock;
o our Board of Directors is divided into three classes as nearly
equal in size as possible with staggered three-year terms;
o subject to certain exceptions, the affirmative vote of the
holders of at least two-thirds of our common stock is required
to approve certain major transactions, including any merger or
combination, any sale, lease or exchange of all or
substantially all of our assets, and any dissolution or
liquidation, and the aggregate amount of proceeds received in
any such transaction must satisfy certain fair price
provisions; and
o subject to certain exceptions, the affirmative vote of the
holders of at least two-thirds of the outstanding shares of
our common stock is required to amend certain provisions
including any of the foregoing provisions of our Restated
Certificate of Incorporation.
In addition, our Amended and Restated Bylaws contain provisions that
state the following:
o special meetings of stockholders may be called at any time by
our President, a majority of our Board of Directors or by
holders of not less than one-third of the outstanding shares
of our common stock; and
o all duly submitted stockholder proposals, including
nominations for the election of a director, must be delivered
to us no less than seventy-five (75) days in advance of the
first anniversary of our annual meeting held in the prior
year.
-3-
<PAGE>
Our Restated Certificate of Incorporation and our Amended and Restated
Bylaws also contain certain provisions permitted under the General Corporation
Law of Delaware relating to the liability of directors. The provisions eliminate
a director's liability to us or our stockholders for monetary damages for a
breach of fiduciary duty, except in circumstances involving certain wrongful
acts, such as the breach of a director's duty of loyalty or acts or omissions
which involve intentional misconduct or a knowing violation of law. Our Restated
Certificate of Incorporation and our Amended and Restated Bylaws also contain
provisions obligating us to indemnify our officers and directors to the fullest
extent permitted by the General Corporation Law of Delaware. We believe that
these provisions will assist us in attracting and retaining qualified
individuals to serve as directors.
ITEM 2. EXHIBITS.
The following exhibits are filed as part of this report:
Exhibit
Numbers Description of Document
- ------- -----------------------
1 Specimen Common Stock Certificate. (incorporated by reference to
Exhibit 4.1 to the Registrant's Amendment No.1 to its Registration
Statement on Form S-18 (No. 33-17201) under the Securities Act of 1933,
as amended, filed with the Securities and Exchange Commission and
declared effective on February 2, 1988.)
2 Copy of Registrant's Restated Certificate of Incorporation.
(incorporated by reference to Appendix B to the Registrant's Definitive
Proxy Statement for Annual Meeting of Stockholders filed with the
Securities and Exchange Commission on May 18, 1999.)
3 Copy of Registrant's Amended and Restated By-Laws. (incorporated by
reference to Appendix C to the Registrant's Definitive Proxy Statement
for Annual Meeting of Stockholders filed with the Securities and
Exchange Commission on May 18, 1999.)
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
Date: October 29, 1999 BENTLEY PHARMACEUTICALS, INC.
By: /s/ Michael D. Price
-------------------------------
Michael D. Price
Secretary and Treasurer
-5-
