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FORM 8-A/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
Cell Genesys, Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 94-3061375
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(State of incorporation or organization (IRS Employer I.D. No.)
322 Lakeside Drive, Foster City, CA 94404
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(Address of principal executive offices)
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
(if applicable): Not applicable.
Securities to be registered pursuant to Section 12(b) of the Act:
None
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
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This Amendment No. 1 on Form 8-A is being filed by Cell Genesys,
Inc., to amend and restate Item 1 and the exhibit filed under Item 2 of the
Form 8A originally filed on August 8, 1995.
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
Cell Genesys, Inc. (the "Company") and First National Bank of
Boston, currently known as Fleet National Bank, (the "Rights Agent"),
are parties to a Preferred Shares Rights Agreement dated as of July
28, 1995 (the "Previous Agreement"). Pursuant to the Prior Agreement,
the Board of Directors of the Company declared a dividend of one
right (a "Right") to purchase one one-hundredth share of the
Company's Series A Participating Preferred Stock ("Series A
Preferred") for each outstanding share of Common Stock, par value
$0.001. The dividend was payable on August 21, 1995 (the "Record
Date") to shareholders of record as of the close of business on that
date. Under the Previous Agreement, each Right entitled the
registered holder to purchase from the Company one one-hundredth of a
share of Series A Preferred at an exercise price of $45.00, subject
to adjustment.
On July 26, 2000, pursuant to section 27 of the Previous
Agreement, the Company's Board of Directors agreed to restate the
dividend that it had declared under the Previous Agreement in an
Amended and Restated Preferred Shares Rights Agreement dated July 26,
2000 (the "Rights Agreement"). Under the Rights Agreement, the
Company's Board of Directors amended the Previous Agreement to amend
the dividend of one right (a "Right") to purchase one one-thousandth
share of the Company's Series A Preferred for each outstanding share
of Common Stock, par value $0.001 per share ("Common Shares"), of the
Company. Each Right entitles the registered holder to purchase from
the Company one one-thousandth of a share of Series A Preferred at an
exercise price of $300.00 (the "Purchase Price"), subject to
adjustment.
The following summary of the principal terms of the Rights
Agreement is a general description only and is subject to the detailed
terms and conditions of the Rights Agreement. A copy of the Rights
Agreement is attached as Exhibit B 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 (defined below). Certificates for the Rights ("Rights
Certificates") will not be sent to shareholders and the Rights will
attach to and trade only together with the Common Shares.
Accordingly, Common Share certificates outstanding on the Record Date
will evidence the Rights related thereto, and Common Share
certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (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, also will
constitute the transfer of the Rights associated with the Common
Shares represented by such certificate.
DISTRIBUTION DATE
The Rights will be separate from the Common Shares, Rights
Certificates will be issued and the Rights will become exercisable
upon the earlier of: (i) the tenth day (or such later date as may be
determined by the Company's Board of Directors) after a person or
group of affiliated or associated persons ("Acquiring Person") has
acquired, or obtained the right to acquire, acquires
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beneficial ownership of (i) 15% or more of the Common Shares then
outstanding, or (b) the tenth business day (or such later date as may
be determined by the Company's Board of Directors) after a person or
group announces a tender or exchange offer, the consummation of which
would result in ownership by a person or group of 15% or more of the
Common Shares then oustanding. The earlier of such dates is referred
to as the "Distribution Date."
ISSUANCE OF RIGHTS CERTIFICATES; EXPIRATION OF RIGHTS
As soon as practicable following the Distribution Date, a
summary of the Rights will be mailed to holders of record of the
Common Shares as of the close of business on the Distribution Date
and such separate Rights Certificates alone will evidence the Rights
from and after the Distribution Date. All Common Shares issued after
the Distribution Date will be issued with Rights. The Rights will
expire on the earliest of (i) July 26, 2010 the "Final Expiration
Date"), or (ii) redemption or exchange of the Rights as described
below.
INITIAL EXERCISE OF THE RIGHTS
Following the Distribution Date, and until one of the further
events described below, holders of the Rights will be entitled to
receive, upon exercise and the payment of the Purchase Price, one
one-thousandth share of the Series A Preferred. In the event that the
Company does not have sufficient Series A Preferred available for all
Rights to be exercised, or the Board decides that such action is
necessary and not contrary to the interests of Rights holders, the
Company may instead substitute cash, assets or other securities for
the Series A Preferred for which the Rights would have been
exercisable under this provision or as described below.
RIGHT TO BUY COMPANY COMMON SHARES
Unless the Rights are earlier redeemed, in the event that an
Acquiring Person obtains 15% or more of the Company's Common Shares
then outstanding, then 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, Common Shares having a
value equal to two times the Purchase Price. Rights are not
exercisable following the occurrence of an event as described above
until such time as the Rights are no longer redeemable by the Company
as set forth below.
RIGHT TO BUY ACQUIRING COMPANY STOCK
Similarly, unless the Rights are earlier redeemed, in the
event that, after an Acquiring Person obtains 15% or more of the
Company's Common Shares then outstanding, (i) the Company is acquired
in a merger or other business combination transaction, or (ii) 50% or
more of the Company's consolidated assets or earning power are sold
(other than in transactions in the ordinary course of business),
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, shares of common
stock of the acquiring company having a value equal to two times the
Purchase Price.
EXCHANGE PROVISION
At any time after the acquisition by an Acquiring Person
obtains 15% or more of the Company's Common Shares then outstanding
and prior to the acquisition by such Acquiring
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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 on or prior to the Close of Business on the
earlier of (i) the fifth day following the Shares Acquisition (or such
later date as may be determined by action of the Company's Board of
Directors and publicly announced by the company), or (ii) the Final
Expiration Date, the Company may redeem the Rights in whole, but not
in part, at a price of $0.001 per Right.
ADJUSTMENTS TO PREVENT DILUTION
The Purchase Price payable, the number of Rights, and the
number of Series A Preferred 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 the dilutive
issuances by the Company as set forth in the Rights Agreement. With
certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at
least 1% in such Purchase Price.
CASH PAID INSTEAD OF ISSUING FRACTIONAL SHARES
No fractional portion less than integral multiples of one
Common Share will be issued upon exercise of a Right and, 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 SHAREHOLDERS' RIGHTS PRIOR TO EXERCISE
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder 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.
AMENDMENT OF RIGHTS AGREEMENT
The terms of the Rights and the Rights Agreement may be
amended in any respect without the consent of the Rights holders on or
prior to the Distribution Date; thereafter, the terms of the Rights
and the Rights Agreement may be amended without the consent of the
Rights holders in order to cure any ambiguities or to make changes
which do not adversely affect the interests of Rights holders (other
than the Acquiring Person).
RIGHTS AND PREFERENCES OF THE SERIES A PREFERRED
Each one one-thousandth of a share of Series A Preferred has
rights and preferences substantially equivalent to those of one Common
Share.
NO VOTING RIGHTS
Rights will not have any voting rights.
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CERTAIN ANTI-TAKEOVER EFFECTS
The Rights approved by the Board are designed to protect and
maximize the value of the outstanding equity interests in the Company
in the event of an unsolicited attempt by an acquirer to take over the
Company in a manner or on terms not approved by the Board of
Directors. Takeover attempts frequently include coercive tactics to
deprive the Company's Board of Directors and its shareholders of any
real opportunity to determine the destiny of the Company. The Rights
have been declared by the Board in order to deter such tactics,
including a gradual accumulation of shares in the open market of 15%
or greater position to be followed by a merger or a partial or
two-tier tender offer that does not treat all shareholders equally.
These tactics unfairly pressure shareholders, squeeze them out of
their investment without giving them any real choice and deprive them
of the full value of their shares.
The Rights are not intended to prevent a takeover of the
Company and will not do so. Subject to the restrictions described
above, the Rights may be redeemed by the Company at $0.001 per Right
at any time prior to the Distribution Date. Accordingly, the Rights
should not interfere with any merger or business combination approved
by the Board of Directors.
Issuance of the Rights does not in any way weaken the
financial strength of the Company or interfere with its business
plans. The issuance of the Rights themselves has no dilutive effect,
will not affect reported earnings per share, should not be taxable to
the Company or to its shareholders, and will not change the way in
which the Company's shares are presently traded. The Company's Board
of Directors believes that the Rights represent a sound and
reasonable means of addressing the complex issues of corporate policy
created by the current takeover environment.
However, the Rights 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 Company's
Board of Directors, except pursuant to an offer conditioned upon the
negation, purchase or redemption of the Rights.
ITEM 2. EXHIBITS
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B Amended and Restated Preferred Shares Rights Agreement, dated as of July 26, 2000,
between Cell Genesys, Inc. and Fleet National Bank, including the form of the
Amended Certificate of Designation, the form of Rights Certificate and the Summary
of Rights attached thereto as Exhibits A, B, and C, respectively.
3.1 Restated Certificate of Incorporation of Cell Genesys, Inc.(1)
3.2 Amended and Restated by-laws of Cell Genesys, Inc.(2)
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SIGNATURE
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(1) Incorporated by reference to the same numbered exhibit filed with Cell
Genesys, Inc.'s Registration Statement on Form S-1 (Reg. No. 33-46452).
(2) Incorporated by reference to the same numbered exhibit filed with Cell
Genesys, Inc.'s Annual Report on Form 10K for the year ended December 31, 1992.
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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.
Date: July 28, 2000 CELL GENESYS, INC.
By: /s/ Matthew J. Pfeffer
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MATTHEW J. PFEFFER
Vice President & Chief
Financial Officer
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