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FORM 8-B/A1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
Filed Pursuant to Section 12(b) or (g)
of The Securities Exchange Act of 1934
PHARMACEUTICAL RESOURCES, INC.
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(Exact name of registrant as specified in its charter)
New Jersey 22-3122182
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Ram Ridge Road, Spring Valley, New York 10977
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(Address of principal executive office) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Class Name of each exchange on which
-------------- each class is to be registered
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Common Stock, $.01 par value The New York Stock Exchange, Inc.
The Pacific Stock Exchange
Incorporated
Common Stock Purchase Rights The New York Stock Exchange, Inc.
The Pacific Stock Exchange
Incorporated
Securities to be registered pursuant to 12(g) of the Act:
None
Total Number of Pages--14
Exhibit Index is located on Page 10
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ITEM 1. GENERAL INFORMATION.
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ITEM 2. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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Common Stock. The following description of the capital stock of the
Registrant is a summary of certain provisions of the Registrant's Certificate of
Incorporation and By-Laws. A copy of the Certificate of Incorporation is
attached as Exhibit 3.1 to the Registration of Securities of Certain Successor
Issuers on Form 8-B, dated August 6, 1991, filed by the Registrant with the
Securities and Exchange Commission (the "Form 8-B") and is incorporated herein
by reference. A copy of the Registrant's By-Laws is attached as Exhibit 3.2 to
the Amendment to Application or Report filed pursuant to Section 12, 13 or 15(d)
of the Securities Exchange Act of 1934 on Form 8, dated May 14, 1992, filed by
the Registrant with the Securities and Exchange Commission (the "Form 8") and is
incorporated herein by reference. The following description of the capital
stock does not purport to be complete and is qualified in its entirety by
reference to such exhibits.
The authorized capital stock of the Registrant consists of 60,000,000
shares of common stock, par value $.01 par value, of the Company ("Common
Stock") and 6,000,000 shares of preferred stock, par value $.0001 per share (the
"Preferred Stock"), of which 2,000,000 shares have been designated as the Series
A Convertible Preferred Stock, par value $.0001 per share. The terms and
provisions of 4,000,000 shares of Preferred Stock may be designated by the Board
of Directors of the Registrant without shareholder approval, and consequently
are not described below. Subject to the rights of holders of the Preferred
Stock, holders of Common Stock have equal and ratable rights to dividends from
funds legally available therefor, when, as and if declared by the Board of
Directors of the Registrant, and are entitled to share ratably in all of the
assets of the Registrant available for distribution to holders of Common Stock
upon the liquidation, dissolution or winding up of the affairs of the
Registrant. The extent to which the Registrant may pay cash dividends is
largely dependent upon the extent to which it receives cash dividends or other
cash distributions from Par. Holders of Common Stock do not have preemptive,
subscription or conversion rights. There are no redemption or sinking fund
provisions in the Registrant's Certificate of Incorporation.
Shareholders are entitled to one vote for each share of Common Stock
held of record on matters submitted to a vote of shareholders. The Certificate
of Incorporation and the By-Laws provide that the Registrant's Board of
Directors will be divided into three classes of directors, with the classes to
be as nearly equal in number as possible. The Certificate of Incorporation and
the By-Laws provide that, of the initial directors of the Registrant,
approximately one-third will continue to serve until the 1992 Annual
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Meeting of Shareholders, approximately one-third will continue to serve until
the 1993 Annual Meeting of Shareholders, and approximately one-third will
continue to serve until the 1994 Annual Meeting of Shareholders. Following the
initial election of directors in connection with the formation of the
Registrant, one class of directors will be elected each year for a three-year
term. Each director will be elected by a plurality of all votes cast for the
election of such director. The classification of directors has the effect of
making it more difficult for shareholders to change the composition of the
Registrant's Board. At least two annual meetings of shareholders, instead of
one, will generally be required to effect a change in a majority of the
Registrant's Board. As a result, the classification provisions may discourage
proxy contests for the election of directors or purchases of substantial blocks
of securities for the purpose of gaining control because the provisions would
operate to prevent obtaining control of the Board in a relatively short period
of time. Because the New Jersey Business Corporation Act provides that
directors on classified boards may only be removed by shareholders for cause,
the classification provisions would delay shareholders who do not agree with the
policies of the Board from replacing a majority of the Board for two years
unless they can demonstrate that the directors should be removed for cause and
obtain the requisite vote.
The Common Stock does not have cumulative voting rights. With a
classified board of directors, holders of more than 50% of Common Stock voting
for the election of directors can elect all directors of the class to be elected
in any year if such holders choose to do so. In such event, the holders of the
remaining shares of Common Stock will not be able to elect any person or persons
to the class of directors which is nominated for election.
Common Stock Purchase Rights. On August 6, 1991, the Board of
Directors of the Registrant authorized the issuance of one Right for each
outstanding share of Common Stock to shareholders of record. Each Right
entitles the registered holder to purchase from the Registrant one share of
Common Stock at a purchase price of $25.00, subject to adjustment in certain
circumstances.
The description and terms of the Rights are set forth in a Rights
Agreement between the Registrant and Midlantic National Bank, as rights agent
(the "Rights Agent"), dated August 6, 1991 (the "Rights Agreement"), which was
filed as an exhibit to the Form 8-B. On April 27, 1992, the Registrant and the
Rights Agent entered into the Amendment to Rights Agreement, dated as of April
27, 1992 (the "First Amendment"), for the purpose of supplementing the
protections provided in the Rights Agreement. The First Amendment was filed as
an exhibit to the Form 8. On March 23, 1995, the Board of Directors approved an
amendment to the Rights Agreement to exempt from the Rights Agreement
acquisitions of Common Stock permitted under a Stock Purchase Agreement, dated
March 25, 1995 (the "Stock Purchase Agreement"), between the Registrant and Clal
Pharmaceutical Ltd., an
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Israeli corporation ("Clal"). The Registrant and the Rights Agent entered into
the Amendment to Rights Agreement, dated March 24, 1995 (the "Second
Amendment"), to effectuate the foregoing. The Amendment affects all existing
Rights and will apply to all Rights to be issued in the future. The Amendment
is attached hereto as Exhibit No. 4.3.
Unless otherwise defined herein, all capitalized terms used below
shall have the meanings as set forth in the Rights Agreement, as amended. The
following description of the Rights, as amended, does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, the First
Amendment and the Second Amendment. The Rights Agreement includes the form of
Rights Certificate as Exhibit A thereto and the Summary of Rights to Purchase
Common Stock as Exhibit B thereto.
Initially, the Rights will be attached to the certificates
representing shares of Common Stock, no separate Rights Certificates evidencing
the Rights will be issued, and the Rights will automatically trade with shares
of Common Stock. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) ten days following a public
announcement that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the outstanding shares of Common Stock (an "Acquiring Person"), (ii) ten
business days (or such later date as may be determined by action of the Board of
Directors prior to such time as any person becomes a group or becomes an
Acquiring Person) following the commencement of a tender or exchange offer that
would result in a person or group beneficially owning 15% or more of such
outstanding shares of Common Stock or (iii) ten business days following a good
faith determination by the Board of Directors that a person or group of
affiliated or associated persons has sought to obtain control of the Registrant,
whether through ownership of Common Stock, by contract or otherwise, with the
result that control by such person or such group of persons (a "Disqualifying
Person") would materially and adversely affect the maintenance, renewal or
acquisition of the governmental or regulatory approvals by the Registrant or any
of its subsidiaries. The term "Acquiring Person" excludes Clal and its
permitted assigns to the extent that their acquisitions of Common Stock are
permitted under the Stock Purchase Agreement. The first date of public
announcement of the existence of an Acquiring Person is hereinafter referred to
as the "Share Acquisition Date". The Date on which the Board of Directors shall
make the good faith determination referred to in the previous sentence is
hereinafter referred to as the "Disqualifying Person Determination Date."
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, such separate Rights
Certificates alone will represent the Rights. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), (i) the Rights will
be evidenced by and
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will be transferred with and only with such Common Stock certificates, (ii) new
Common Stock certificates issued after the Effective Time will contain a legend
incorporating the Rights Agreement by reference, and (iii) the surrender or
transfer of any Common Stock certificate will also constitute the surrender or
transfer of the Rights associated with the Common Stock represented by such
certificate. The Rights are not exercisable until the occurrence of certain
events following the Distribution Date and will expire at the close of business
on January 19, 2000, unless earlier redeemed or exchanged by the Registrant as
described below.
In the event that (i) the Registrant is the surviving corporation in a
merger or consolidation with an Acquiring Person and the Common Stock is not
changed or exchanged, (ii) a Person becomes the beneficial owner of 25% or more
of the then outstanding shares of Common Stock (except pursuant to a tender
offer for all outstanding shares of Common Stock which is recommended by a
majority of the Continuing Directors of the Registrant), (iii) an Acquiring
Person engages in one or more types of "self dealing" transactions which are
described in the Rights Agreement, (iv) during such time as there is an
Acquiring Person, an event set forth in the Rights Agreement occurs which
results in such Acquiring Person's percentage ownership of any class of equity
securities of the Registrant or its subsidiaries being increased by more than 1%
or (v) the Board of Directors, with the concurrence of a majority of Continuing
Directors, in good faith, determines that there is a reasonable likelihood that
control of the Registrant by a Disqualifying Person will result in the loss of,
or the denial of any renewal or approval for, any governmental or regulatory
approvals of the Registrant or its subsidiaries, the Rights Agreement provides
that proper provision shall be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof, Common Stock
having a value equal to two times the exercise price of the Right. However,
Rights are not exercisable following the occurrence of any of the events set
forth above until such times as the Rights are no longer redeemable by the
Registrant. Notwithstanding any of the foregoing, upon the occurrence of any of
the events set forth in the first sentence of this paragraph, all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were,
owned by an Acquiring Person or any of his associates, affiliates or
transferees, will become null and void.
In the event that, at any time following the earlier of the
Distribution Date and the Shares Acquisition Date, (i) the Registrant engages in
a merger or other business combination transaction in which the Registrant is
not the surviving corporation, (ii) the Registrant engages in a merger or other
business combination transaction with another person in which the Registrant is
the surviving corporation, but in which its shares of Common Stock are changed
or exchanged, or (iii) 50% or more of the Registrant's assets or earning power
is sold or transferred, the Rights Agreement provides that proper provision
shall be made so that each holder of
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a Right (subject to the same exception with respect to Rights which are owned by
an Acquiring Person and his affiliates, associates and transferees as is
described in the last sentence of the immediately preceding paragraph) will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, 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 immediately preceding paragraph are
referred to as "Triggering Events". However, a merger or other business
combination will not be subject to this provision if it follows and is effected
upon the same terms as a tender offer which is recommended by a majority of the
Continuing Directors of the Registrant as provided above.
At any time after the occurrence of an event described in the first
sentence of either of the two immediately preceding paragraphs and prior to the
time that any person becomes the beneficial owner of 50% or more of the
outstanding Common Stock, the Board of Directors of the Registrant may exchange
the Rights for Common Stock (except Rights which previously have been voided as
described above), in whole or in part, at an exchange ratio of one share of
Common Stock per Right.
The Purchase Price payable, and the number of shares of Common Stock
issuable, upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common Stock, (ii) upon the
grant to holders of the Common Stock certain rights, options or warrants to
subscribe for Common Stock or securities convertible into Common Stock at less
than the current market price of the Common Stock, or (iii) upon distribution to
holders of the Common Stock of evidences of indebtedness, stock (other than a
dividend payable in Common Stock), or assets (excluding regular cash dividends)
or of subscription rights, options or warrants (other than those referred to
above).
The number of outstanding Rights and the number of shares of Common
Stock issuable upon exercise of each Right are also subject to adjustment in the
event of a stock split of Common Stock or a stock dividend on Common Stock
payable in Common Stock or subdivisions, consolidations or combinations of
Common Stock occurring, in any such case, prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Common Stock will be issued upon exercise of the
Rights and, in lieu thereof, a cash payment will be made on the market price of
the Common Stock on the last trading day prior to the date of exercise.
At any time until ten days following the Shares Acquisition Date or
the Disqualifying Person Determination Date (or such later
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date as the Board, with the concurrence of a majority of the Continuing
Directors, may determine), the Registrant may redeem the Rights in whole, but
not in part, at a price of $.01 per Right. Immediately upon the redemption of
the Rights, the right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the redemption price. The
Registrant's right of redemption may also be reinstated, subject to certain
conditions and with the approval of the Board of Directors and the concurrence
of a majority of the Continuing Directors, in the event that an Acquiring Person
reduces his beneficial ownership of Common Stock to 10% or less of the
outstanding Common Stock.
Until a right is exercised, the holder thereof, has no rights as a
shareholder of the Registrant, including, without limitation, the right to vote
or to receive dividends. While the distribution of the Rights is not taxable to
shareholders or to the Registrant, shareholders may, depending upon their
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock, or other consideration, of the Registrant or for
common stock of an acquiring company as set forth above.
The terms of the Rights Agreement may be amended by the Registrant and
the Rights Agent in any manner, provided that following the earlier of the
Shares Acquisition Date and the Distribution Date, the amendment may not
adversely affect the interests of the holders of Rights, other than an Acquiring
Person and his affiliates and associates, and must be approved by a majority of
the Continuing Directors then in office.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the
Registrant upon terms not approved by the Board, and under certain circumstances
the Rights beneficially owned by such a person or group may become void. The
Rights should not interfere with any merger or other business combination which
is approved by the Board, since it may redeem the then outstanding Rights as
discussed above.
ITEM 3. FINANCIAL STATEMENTS AND EXHIBITS.
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(a) Financial Statements.
Pursuant to paragraph (a) of Instructions to Financial Statements, no
financial statements are required to be filed herewith.
(b) Exhibits.
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3.1 Certificate of Incorporation (1).
3.2 By-Laws, as amended and restated (2).
4.1 Form of Rights Agreement between the Registrant and
Midlantic National Bank, as Rights Agent (1).
4.2 Amendment to Rights Agreement between the Registrant and
Midlantic National Bank, as Rights Agent, dated as of April
27, 1992 (2).
4.3 Amendment to Rights Agreement between the Registrant and
Midlantic National Bank, as Rights Agent, dated March 23,
1995.
10.1 Standstill Agreements and Irrevocable Proxies, each dated
May 29, 1990, between the Registrant and each of Asrar
Burney, Dulal Chatterji and Raja Feroz (3).
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(1) Previously filed with the Securities and Exchange Commission
as an Exhibit to the Registrant's Registration Statement on
Form 8-B, dated August 6, 1991, and incorporated herein by
reference.
(2) Previously filed with the Securities and Exchange Commission
as an Exhibit to Amendment No. 1 on Form 8 to the
Registrant's Registration Statement on Form 8-B, filed May
15, 1992, and incorporated herein by reference.
(3) Previously filed with the Securities and Exchange Commission
as an Exhibit to Par Pharmaceutical, Inc.'s Current Report
on Form 8-K, dated May 29, 1990, and incorporated herein by
reference.
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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, thereunto duly authorized.
PHARMACEUTICAL RESOURCES, INC.
Date: April 5, 1995 By: /s/ Robert I. Edinger
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Robert I. Edinger
Vice President--Finance and
Administration
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Exhibit Index
Exhibit No. Description Seq. Page No.
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4.3 Amendment to Rights 11
Agreement, dated
March 24, 1995,
between the
Registrant and Clal
Pharmaceutical
Industries Ltd.
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EXHIBIT 4.3
AMENDMENT TO RIGHTS AGREEMENT dated March 24, 1995, to
the Rights Agreement dated August 6, 1991, as amended (the
"Rights Agreement"), by and between Pharmaceutical Resources,
Inc., a New Jersey corporation (the "Company"), and Midlantic
Bank, a national banking association (the "Rights Agent").
WHEREAS, the Board of Directors of the Company, on August 6, 1991,
authorized and adopted a share purchase rights plan (the "Plan") to protect the
Company's shareholders against unsolicited and hostile attempts to acquire
control of the Company and, in connection therewith, executed and delivered the
Rights Agreement to effectuate the terms of the Plan;
WHEREAS, the Board of Directors of the Company, on March 23, 1995,
approved and adopted an amendment to the Plan as described herein in
contemplation of a certain negotiated transaction;
WHEREAS, the Board of Directors of the Company authorized and directed
the proper officers of the Company as well as the Rights Agent to execute and
deliver this Amendment to the Rights Agreement in order to effectuate the
foregoing amendments to the Plan; and
WHEREAS, all capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Rights Agreement.
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2
NOW, THEREFORE, in consideration of the premises, the Rights Agreement
is hereby amended as follows:
Section 1. Certain Definitions. (a) The definition of "Acquiring
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Person" as set forth in the first sentence in Section 1(a) shall be amended by
deleting "or" before "(iv)" and inserting in its stead "," and by inserting the
following at the end of the first sentence thereof before the ".":
"and (v) Clal Pharmaceutical Industries Ltd. and its permitted assigns
(collectively, "Clal") under a stock purchase agreement approved by the
Board of Directors of the Company, as amended from time to time, between
the Company and Clal, so long as any acquisition or tender offer is
permitted under such stock purchase agreement"
(b) The definition of "Permitted Offer" in Section 1(n) shall be
amended in its entirety as follows:
"(n) "Permitted Offer" shall mean the following tender offers made in
the manner prescribed by Section 14(d) of the Exchange Act and the rules
and regulations promulgated thereunder: (i) a tender offer for all
outstanding Common Shares; provided, however, that such tender offer occurs
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at a time when Continuing Directors are in office and a majority of the
Continuing Directors has determined that the offer is fair to, and
otherwise in the best interests of, the Company and its stockholders, and
(ii) a tender offer for Common Shares as permitted by a stock purchase
agreement approved by the Board of Directors of the Company, as amended
from time to time, between the Company and Clal."
(c) The following shall be inserted before the "." in the definition
of "Person" in Section 1(o):
"; provided, however, that "Person" shall exclude Clal until such time
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as any acquisition of or tender offer for Common Shares by Clal shall not
be permitted under a stock purchase agreement approved by the Board of
Directors of the Company, as amended from time to time, between the Company
and Clal"
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3
(d) The following shall be inserted before the "." in the definition
of "Section 11(a)(ii)(A) Event" in Section 1(v):
"; provided, however, in no event shall an acquisition of or tender offer
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for Common Shares by Clal constitute a Section 11(a)(ii)(A) Event until
such time as any such acquisition or tender offer shall no longer be
permitted under a stock purchase agreement approved by the Board of
Directors of the Company, as amended from time to time, between the Company
and Clal"
(e) The following shall be inserted before the "." in the definition
of "Section 13 Event" in Section 1(w):
"; provided, however, in no event shall an acquisition of or tender offer
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for Common Shares by Clal constitute a Section 13 Event until such time as
any such acquisition or tender offer shall no longer be permitted under a
stock purchase agreement approved by the Board of Directors of the Company,
as amended from time to time, between the Company and Clal"
Section 2. Authority for Amendment. This Amendment is being executed
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and delivered as of the date hereof by the Company and the Rights Agent pursuant
to and in accordance with Section 27 of the Rights Agreement. By executing this
Amendment, the Company hereby certifies to the Rights Agent that this Amendment
is in compliance with Section 27 of the Rights Agreement. Except as otherwise
amended hereby, all the provisions of the Rights Agreement shall remain in full
force and effect. This Amendment shall be deemed to be a part of, and shall be
construed as part of, the Rights Agreement.
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4
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to
be duly executed as of the date first above written.
PHARMACEUTICAL RESOURCES, INC.
By /s/ Kenneth I. Sawyer
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Title: President
MIDLANTIC BANK, N.A.
By /s/ Devorah H. Rosen
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Title: Assistant Vice
President
