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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CYBERONICS, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 76-0236465
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(State of incorporation or organization) (IRS Employer Identification No.)
16511 SPACE CENTER BOULEVARD, SUITE 600
HOUSTON, TEXAS 77058
(Address, including zipcode, of Registrant's principal executive offices)
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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
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED SHARE PURCHASE RIGHTS
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(Title of Class)
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ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
General
On January 29, 1997, pursuant to a Preferred Shares Rights Agreement
(the "Rights Agreement") between Cyberonics, Inc. (the "Company") and BankBoston
(formerly known as First National Bank of Boston) a national banking
association, as Rights Agent (the "Rights Agent"), the Company's Board of
Directors (the "Board of Directors") declared a dividend of one right (a
"Right") to purchase one one-thousandth of a share of the Company's Series A
Participating Preferred Stock, par value $0.01 per share (the "Preferred
Shares"), for each outstanding share of common stock of the Company, par value
$0.01 per share (the "Common Shares"). The dividend was paid on March 10, 1997
(the "Record Date") to stockholders of record as of 3:00 p.m. on that date. Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a Preferred Share at an initial exercise price of $150.00 (the
"Exercise Price"), subject to adjustment as provided for in the Rights
Agreement.
On August 21, 2000, the Company amended and restated the Rights
Agreement (the "Second Amended and Restated Rights Agreement"). The following
summary of the principal terms of the Second Amended and Restated Rights
Agreement is a general description only and is subject to the more detailed
terms and conditions of the Second Amended and Restated Rights Agreement. A copy
of the Second Amended and Restated Rights Agreement is attached as Exhibit 4 to
this Registration Statement and is incorporated herein by reference.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date (as
defined below) and the Rights will attach to and trade together with the Common
Shares prior to the Distribution Date. Until the Distribution Date (as defined
below), the Rights will be transferable only in connection with the transfer of
Common Shares. Accordingly, until the Distribution Date (as defined below), the
Rights will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificates with a copy
of the Summary of Rights attached thereto. Common Share certificates issued
after the Record Date will contain a legend incorporating the Second Amended and
Restated Rights Agreement by reference. Until the Distribution Date (as defined
below) (or earlier redemption or expiration of the Rights), the surrender or
transfer of any certificates for Common Shares, outstanding as of the Record
Date, even without notation or a copy of the Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
Common Shares represented by such certificate.
Distribution Date
The Rights will separate from the Common Shares and the Rights will
become exercisable upon the earlier of: (i) 10 days following a public
announcement that a
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person or group of affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding Common Shares, including Common
Shares held by affiliates or associates of such person (an "Acquiring Person"),
or (ii) 10 business days (or such later date as may be determined by a majority
of the Board of Directors) following a person's, or a group of affiliated or
associated persons, commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in such
person or group becoming an Acquiring Person (each a "Distribution Date").
Issuance of Rights Certificates; Expiration of Rights
As soon as practicable following the Distribution Date, separate
certificates representing Rights ("Rights Certificates') will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date. From and after the Distribution Date, the Rights will be
evidenced solely by the Rights Certificates and may be transferred separately
and apart from any transfer of Common Shares. In general, Rights will be issued
in respect of all Common Shares issued after the Record Date but prior to the
earlier of the Distribution Date or Final Expiration Date (as hereinafter
defined), unless the Board of Directors specifies to the contrary at or before
the time of the issuance of the Common Shares (including issuances of Common
Shares pursuant to the exercise of Rights under the Company's benefit plans).
The Rights will expire on the earliest of (i) January 29, 2007, (ii) the date
upon which the redemption of the Rights is effective, or (iii) the date upon
which the Board of Directors orders the exchange of the Rights, as described
below (the earliest of such dates being referred to as the "Final Expiration
Date").
Initial Exercise of the Rights
Following the Distribution Date, and until the Final Expiration Date,
holders of the Rights will be entitled to receive, upon exercise and the payment
of the then effective Exercise Price, one one-thousandth of a Preferred Share.
Right to Buy Common Shares
Unless the Rights are earlier redeemed, in the event that a person
becomes an Acquiring Person, then proper provision will be made so that each
holder of a Right which has not theretofore been exercised (other than Rights
beneficially owned by the Acquiring Person, which will thereafter be void) will
thereafter have the right to receive, upon payment of the then effective
Exercise Price and exercise thereof, Common Shares having a value equal to two
times the then effective Exercise Price. In the event that the Company does not
have sufficient Common Shares available for all Rights to be exercised, or the
Board of Directors decides that such action is necessary or appropriate and not
contrary to the interests of Right holders, the Company may instead reduce the
Exercise Price or substitute cash, assets or other securities having an
aggregate value equivalent to the value of the Common Shares issuable upon the
exercise of the Rights; provided that if the Company fails to meet such
obligation within 30 days following the date a person
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becomes an Acquiring Person, the Company must deliver, upon exercise of a Right
but without requiring payment of the Exercise Price, Common Shares (to the
extent available) and cash equal in value to the difference between the value of
the Common Shares otherwise issuable upon the exercise of a Right and the
Exercise Price then in effect. The Board of Directors may extend the 33 day
period described above for up to an additional 60 days to permit the taking of
action that may be necessary to authorize sufficient additional Common Shares to
permit the issuance of Common Shares upon the exercise in full of the Rights.
Right to Buy Acquiring Company Stock
Unless the Rights are earlier redeemed, in the event that a person
becomes an Acquiring Person and (i) the Company is acquired in a merger or other
business combination transaction (whether or not the Company is the surviving
entity), or (ii) 50% or more of the Company's consolidated assets or earning
power are sold, proper provision must be made so that each holder of a Right
which has not theretofore been exercised (other than Rights beneficially owned
by the Acquiring Person, which will thereafter be void) will thereafter have the
right to receive, upon exercise of such right, shares of common stock or other
securities (free of any restrictions) of the acquiring entity having a value
equal to two times the Exercise Price.
Exchange Provision
At any time after a person becomes an Acquiring Person and prior to the
acquisition by such Acquiring Person of 50% or more of the Company's outstanding
Common Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by the Acquiring Person), in whole or in part, at an
exchange ratio of one Common Share per Right.
Redemption
At any time prior to the occurrence of a person becoming an Acquiring
Person, (a "Triggering Event") the Company may redeem the Rights in whole, but
not in part, at a price of $0.01 per Right (the "Redemption Price"). The Company
may, at its option, pay the Redemption Price either in Common Shares or cash.
The Rights will terminate immediately upon redemption thereof, and the holders
of Rights shall have no rights other than the right to receive the Redemption
Price.
Adjustments to Prevent Dilution
The Exercise Price payable, the number of Rights, and the number of
Preferred Shares or Common Shares or other securities or property issuable upon
exercise of the Rights are subject to adjustment from time to time in connection
with dilutive issuances by the Company as set forth in the Second Amended and
Restated Rights Agreement. With certain exceptions, the Exercise Price will not
be adjusted until cumulative adjustments would require an adjustment of at least
1% in such Exercise Price.
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Cash Paid Instead of Issuing Fractional Shares
No fractions of Common Shares will be issued upon exercise of a Right;
in lieu thereof, an adjustment in cash will be made based on the market price of
the Common Shares on the last trading date prior to the date of exercise.
No Rights as a Stockholder
A holder of Rights, as such, will have no rights as a stockholder of
the Company (other than any rights resulting from such holder's ownership of
Common Shares), including, without limitation, the right to vote or to receive
dividends, until such time as the Rights become exercisable.
Amendment
The Second Amended and Restated Rights Agreement may be supplemented or
amended by the Board of Directors in any manner without the approval of the
Rights holders prior to a Triggering Event. After a Triggering Event, the
provisions of the Second Amended and Restated Rights Agreement may be amended by
the Board of Directors in order to cure any ambiguity, defect or inconsistency,
to make changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or to shorten or lengthen any
time period under the Second Amended and Restated Rights Agreement; provided,
however, that no amendment to adjust the time period governing redemption shall
be made at such time as the Rights are not redeemable.
Rights and Preferences of the Preferred Shares
Preferred Shares purchasable upon exercise of the Rights are not be
redeemable. Each Preferred Share will be entitled to an aggregate dividend of
1,000 times the aggregate per share amount of all dividends declared (including
noncash dividends and other distributions) per Common Share. In the event of
liquidation, the holders of each Preferred Share will be entitled to receive
1,000 times the per share consideration being distributed with respect to each
Common Share plus an amount equal to accrued and unpaid dividends and
distributions thereon. Each Preferred Share will have 1,000 votes, voting
together with the Common Shares. These rights are protected by customary
anti-dilution provisions.
Because of the nature of the dividend, liquidation and voting rights of
the Preferred Shares, the value of the one one-thousandth interest in a
Preferred Share purchasable upon exercise of each Right should approximate the
value of one Common Share.
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Certain Anti-takeover Effects
The Rights are designed to protect and maximize the value of the
outstanding equity interests in the Company in the event of an unsolicited
attempt by any person to take over the Company, in a manner or on terms not
approved by the Board of Directors. The Rights were declared by the Board of
Directors in order to deter such tactics, including a gradual accumulation
through purchases in the open market of 15% or more of the Common Shares
outstanding to be followed by a merger or a partial or two-tier tender offer
that does not treat all stockholders equally.
The Rights are not intended to prevent a takeover and will not do so.
The Rights may be redeemed by the Company at the Redemption Price at anytime
prior to the occurrence of a Triggering Event. The Rights, however, may have the
effect of rendering more difficult or discouraging an acquisition of the Company
deemed undesirable by the Board of Directors. The Rights may cause substantial
dilution to a person or group that attempts to acquire the Company on terms or
in a manner not approved by the Board of Directors, except pursuant to an offer
conditioned upon the negation, purchase or redemption of the Rights.
Accordingly, the Rights should not interfere with any merger or business
combination approved by the Board of Directors.
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<TABLE>
<CAPTION>
<S> <C>
Exhibit No. Description
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1 Specimen Certificate for the Company's Common Stock (1)
2 Restated Certificate of Incorporation of the Company (1)
3 Bylaws of the Company (2)
4 Second Amended and Restated Preferred Shares Rights
Agreement, dated as of August 21, 2000 between
Cyberonics, Inc. and BankBoston, N.A. (formerly known as
The First National Bank of Boston) a national banking
association, as Rights Agent, including the First Amended
Certificate of Designation, the form of Rights
Certificate and the Summary of Rights attached thereto as
Exhibits A, B and C, respectively (2)
</TABLE>
(1) Incorporated by reference to the Company's Registration Statement on Form
S-1 (Commission File No. 33-45118) declared effective by the Securities and
Exchange Commission on February 10, 1993.
(2) Incorporated by reference to the Company's Current Report on Form 8-K filed
on September 11, 2000.
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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.
Cyberonics, Inc.
Date: September 28, 2000 By: /s/ PAMELA B. WESTBROOK
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Pamela B. Westbrook
Vice President, Finance and
Administration and Chief Financial
Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C>
Exhibit No. Description
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1 Specimen Certificate for the Company's Common Stock (1)
2 Restated Certificate of Incorporation of the Company (1)
3 Bylaws of the Company (2)
4 Second Amended and Restated Preferred Shares Rights
Agreement, dated as of August 21, 2000 between
Cyberonics, Inc. and BankBoston, N.A. (formerly known as
The First National Bank of Boston) a national banking
association, as Rights Agent, including the First Amended
Certificate of Designation, the form of Rights
Certificate and the Summary of Rights attached thereto as
Exhibits A, B and C, respectively (2)
</TABLE>
(1) Incorporated by reference to the Company's Registration Statement on Form
S-1 (Commission File No. 33-45118) declared effective by the Securities and
Exchange Commission on February 10, 1993.
(2) Incorporated by reference to the Company's Current Report on Form 8-K filed
on September 11, 2000.
