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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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VISX, INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
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Delaware 06-1161793
State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
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3400 Central Expressway
Santa Clara, California 95051
(Address of Principal Executive Offices) (Zip Code)
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If this form relates to the registration If this form relates to the registration
of a class of securities pursuant to of a class of securities pursuant to
Section 12(b) of the Exchange Act and is Section 12(g) of the Exchange Act and is
effective pursuant to General Instruction effective pursuant to General Instruction
A.(c), please check the following box. [ ] A.(d), please check the following box. [X]
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Securities Act registration statement file number to which this form relates:
[________]
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Title: Common Stock Purchase Rights
Exchange: Nasdaq National Market
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On July 28, 2000, the Board of Directors of VISX, Incorporated (the
"Company") declared a dividend distribution of one Right for each outstanding
share of the Company's common stock ("Common Stock") to stockholders of record
at the close of business on August 7, 2000 (the "Record Date"). Each Right
entitles the registered holder to purchase from the Company one share of Common
Stock at a Purchase Price of $150.00 per share (the "Purchase Price"), subject
to adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and Fleet National Bank,
a national banking association, as Rights Agent.
Initially, the Rights will be attached to all certificates representing
shares of Common Stock then outstanding, and no separate Rights Certificates
will be distributed. Subject to certain exceptions specified in the Rights
Agreement, the Rights will separate from the Common Stock and a "Distribution
Date" will occur upon the earlier of (i) ten (10) business days (or such later
date as the Board shall determine, provided, however, that no deferral of a
Distribution Date by the Board of Directors pursuant to the terms of the Rights
Agreement described in this clause (i) may be made at any time during the
Special Period (as defined below)) following (a) a public announcement that a
person or group of affiliated or associated persons (an "Acquiring Person") has
acquired beneficial ownership of 10% or more of the outstanding shares of Common
Stock, other than as a result of repurchases of stock by the Company or certain
inadvertent actions by institutional or certain other stockholders or (b) the
date a Person has entered into an agreement or arrangement with the Company or
any subsidiary of the Company providing for an Acquisition Transaction (as
defined below) (the "Stock Acquisition Date") or (ii) ten (10) business days (or
such later date as the Board shall determine, provided, however, that no
deferral of a Distribution Date by the Board of Directors pursuant to the terms
of the Rights Agreement described in this clause (ii) may be made at any time
during the Special Period (as defined below)) following the commencement of a
tender offer or exchange offer that would result in a person or group becoming
an Acquiring Person. The 10% threshold will not be applicable to passive
investors who stay below a 15% ownership level. In addition, stockholders of
more than 10% of the Common Stock outstanding as of July 28, 2000 will be
grandfathered at their current level plus 1%.
An Acquisition Transaction is defined in the Rights Agreement as (x) a
merger, consolidation or similar transaction involving the Company or any of its
Subsidiaries as a result of which stockholders of the Company will no longer own
a majority of the outstanding shares of Common Stock or a publicly traded entity
which controls the Company or, if appropriate, the entity into which the Company
may be merged, consolidated or otherwise combined (based solely on the shares of
Common Stock received or retained by such stockholders, in their capacity as
stockholders of the Company, pursuant to such transaction),
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(y) a purchase or other acquisition of all or a substantial portion of the
assets of the Company and its Subsidiaries, or (z) a purchase or other
acquisition of securities representing 10% or more of the shares of Common Stock
then outstanding.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at 5:00 p.m. (Santa Clara, California time) on July 28, 2010, unless such date
is extended or the Rights are earlier redeemed or exchanged by the Company as
described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring Person, except pursuant to
an offer for all outstanding shares of Common Stock which the independent
directors determine, after receiving advice from one or more investment banking
firms, to be fair and not inadequate to and to otherwise be in the best
interests of the Company and its stockholders, (a "Qualified Offer"), each
holder of a Right will thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the exercise price of the
Right. An illustration of such an event is set out in the following paragraph.
Notwithstanding any of the foregoing, following the occurrence of the event set
forth in this paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following the
occurrence of the event set forth above until such time as the Rights are no
longer redeemable by the Company as set forth below.
For example, at an exercise price of $150.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase
$300.00 worth of Common Stock (or other consideration, as noted above) for
$150.00. Assuming that the Common Stock had a per share
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value of $25.00 at such time, the holder of each valid Right would be entitled
to purchase twelve (12) shares of Common Stock (or other consideration) for
$150.00.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company engages in a merger or other business combination transaction in
which the Company is not the surviving corporation (other than with an entity
which acquired the shares pursuant to a Qualified Offer), (ii) the Company
engages in a merger or other business combination transaction in which the
Company is the surviving corporation and the Common Stock is changed or
exchanged, or (iii) 50% or more of the Company's assets, cash flow or earning
power is sold or transferred, each holder of a Right (except Rights which have
previously been voided as set forth above) shall thereafter have the right to
receive, upon exercise, common stock of the acquiring company having a value
equal to two times the exercise price of the Right. The events set forth in this
paragraph and in the preceding two paragraphs are referred to as the "Triggering
Events."
At any time until ten (10) business days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part, at a price of
$0.001 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). For one hundred eighty (180) days (the
"Special Period") following a change in control of the Board of Directors, that
has not been approved by the Board of Directors, occurring within six (6) months
of an unsolicited third party acquisition or business combination proposal, the
new directors are entitled to redeem the Rights (assuming the Rights would have
otherwise been redeemable), including to facilitate an acquisition or business
combination transaction involving the Company, but only (1) if they have
followed certain procedures or (2) if such procedures are not followed, and if
their decision regarding redemption and/or any acquisition or business
combination is challenged as a breach of fiduciary duty of care or loyalty, the
directors (solely for purposes of determining the effectiveness of such
redemption) are able to establish the entire fairness of such redemption, and,
if applicable, such transaction. Immediately upon the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the $0.001 redemption
price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company or in the event of the redemption of the
Rights as set forth above.
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Any of the provisions of the Rights Agreement may be amended by the Board
of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights, or to shorten or lengthen any time
period under the Rights Agreement. The foregoing notwithstanding, no amendment
may be made to the Rights Agreement during the Special Period or at a time when
the Rights are not redeemable.
As of August 3, 2000, there were 64,990,089 shares of Common Stock issued
and outstanding and 4,464,123 shares of Common Stock in the treasury. As of
August 3, 2000, options to purchase 8,408,417 shares of Common Stock were
outstanding. Each share of Common Stock outstanding at the close of business on
August 7, 2000, will receive one Right. So long as the Rights are attached to
the Common Stock, one Right (as such number may be adjusted pursuant to the
provisions of the Rights Agreement) shall be deemed to be delivered for each
share of Common Stock issued or transferred by the Company in the future.
Seventy million (70,000,000) shares of Common Stock are initially reserved for
issuance upon exercise of the Rights.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become discount Rights unless the offer
is conditional on a substantial number of Rights being acquired. The Rights,
however, should not affect any prospective offeror willing to make an offer at a
price that is fair and not inadequate and otherwise in the best interest of the
Company and its stockholders. The Rights should not interfere with any merger or
other business combination approved by the Board since the Board may, at its
option, at any time until ten (10) days following the Stock Acquisition Date
redeem all but not less than all of the then outstanding Rights at the
Redemption Price.
The Rights Agreement specifying the terms of the Rights is attached as an
exhibit to a Current Report on Form 8-K dated August 4, 2000 and incorporated
herein by reference. The foregoing description of the Rights is qualified in its
entirety by reference to such exhibit.
ITEM 2. EXHIBITS.
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1 Rights Agreement, dated as of August 3, 2000, between VISX, Incorporated
and Fleet National Bank, as Rights Agent, including the form of Rights
Certificate as Exhibit A and the Summary of Rights to Purchase Common
Stock as Exhibit B (pursuant to the Rights Agreement, printed Rights
Certificates will not be mailed until after the Distribution Date (as
defined in the Rights Agreement)) (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on Form 8-K, filed August
4, 2000 (File No. 000-17247)).
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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.
VISX, INCORPORATED
By: /s/ TIMOTHY R. MAIER
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Timothy R. Maier
Executive Vice President and Chief
Financial Officer
Date: August 4, 2000
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EXHIBIT INDEX
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1 Rights Agreement, dated as of August 3, 2000, between VISX, Incorporated
and Fleet National Bank, as Rights Agent, including the form of Rights
Certificate as Exhibit A and the Summary of Rights to Purchase Common
Stock as Exhibit B (pursuant to the Rights Agreement, printed Rights
Certificates will not be mailed until after the Distribution Date (as
defined in the Rights Agreement)) (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on Form 8-K, filed August
4, 2000 (File No. 000-17247)).
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