SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
Amendment No. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MEDCATH INCORPORATED
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1635096
(State of incorporation or organization) (IRS Employer Identification No.)
7621 Little Avenue, Suite 106
Charlotte, North Carolina 28226
(Address of principal executive offices) (Zip Code)
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
(Title of Class)
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Item 1. Description of Securities To Be Registered.
On October 2, 1996, the Board of Directors of MedCath
Incorporated (the "Company") declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $.01 per
share (the "Common Shares"), of the Company. The dividend is payable on October
28, 1996 (the "Record Date") to the shareholders of record on that date. Each
Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred stock, par
value $.01 per share (the "Preferred Shares"), of the Company at a price of $120
per one one-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement"), dated as of October 15, 1996, as amended as
of August 22, 1997, between the Company and LaSalle National Bank ("LaSalle") as
successor Rights Agent (the "Rights Agent"). LaSalle was appointed successor
Rights Agent pursuant to an Appointment Agreement and First Amendment to Rights
Agreement, dated as of August 22, 1997 (the "Amendment"), by and among the
Company, LaSalle and First Union National Bank of North Carolina, the initial
Rights Agent.
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 15% or more of the
outstanding Common Shares or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
or group of affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate with a copy
of the Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution
Date (or earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Common Shares. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares
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outstanding as of the Record Date, even without such 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. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on October 15, 2006 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
or exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares
or other securities or property 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
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then-current market price of the Preferred Shares or (iii) upon
the distribution to holders of the Preferred Shares of evidences of indebtedness
or assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each Right are
also subject to adjustment in the event of a stock split of the Common Shares or
a stock dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will
not be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be entitled to
an aggregate dividend of 100 times the dividend declared per Common Share. In
the event of liquidation, the holders of the Preferred Shares will be entitled
to a minimum preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment of 100 times the payment made per Common Share.
Each Preferred Share will have 100 votes, voting together with the Common
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Shares. Finally, in the event of any merger, consolidation or other transaction
in which Common Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. These rights are
protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend,
liquidation and voting rights, the value of the one one-hundredth interest in a
Preferred Share purchasable upon exercise of each Right should approximate the
value of one Common Share.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power are sold after a person or group has become an Acquiring Person,
proper provision will be made so that each holder of a Right will thereafter
have the right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction will have a market value
of two times the exercise price of the Right. In the event that any person or
group of affiliated or associated persons becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring
Person and prior to the acquisition by such person or group of 50% or more of
the outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group, which will
have become void), in whole or in part, at an exchange ratio of one Common
Share, or one one-hundredth of a Preferred Share (or of a share of a class or
series of the Company's preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
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. No fractional Preferred Shares will be issued (other
than fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the acquisition by a person or group of
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affiliated or associated persons of beneficial ownership of 15% or more of the
outstanding Common Shares, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per Right (the "Redemption
Price"). The redemption of the Rights may be made effective at such time on such
basis with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any 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 terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights,
including an amendment to lower certain thresholds described above to not less
than the greater of (i) the sum of .001% and the largest percentage of the
outstanding Common Shares then known to the Company to be beneficially owned by
any person or group of affiliated or associated persons and (ii) 10%, except
that from and after such time as any person or group of affiliated or associated
persons becomes an Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by the Company's Board of Directors, except
pursuant to an offer conditioned on a substantial number of Rights being
acquired. The Rights should not interfere with any merger or other business
combination approved by the Board of Directors since the Rights may be redeemed
by the Company at the Redemption Price prior to the time that a person or group
has acquired beneficial ownership of 15% or more of the Common Shares.
The Rights Agreement, specifying the terms of the Rights and
including the form of the Articles of Amendment to the Amended and Restated
Articles of Incorporation of the Company setting forth the terms of the
Preferred Shares as an exhibit thereto and the Amendment are attached hereto as
exhibits and are incorporated herein by reference. The foregoing description of
the Rights is qualified in its entirety by reference to such exhibits.
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Item 2. Exhibits.
99.1 Rights Agreement, dated as of October 15,
1996, between the Registrant and First Union
National Bank of North Carolina, as Rights
Agent (incorporated by reference to Exhibit
99.1 to the Registrant's Registration
Statement on Form 8-A filed with the
Commission on October 18, 1996).
99.2 Appointment Agreement and First Amendment to
Rights Agreement, by and among the
Registrant, First Union National Bank of
North Carolina and LaSalle National Bank, as
successor Rights Agent.
99.3 Letter, mailed on August 26, 1997, from the
Board of Directors of MedCath Incorporated
to Shareholders.
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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.
Dated: September 12, 1997
MEDCATH INCORPORATED
By: /s/ Richard J. Post
Richard J. Post
Chief Financial Officer,
Secretary and Treasurer
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EXHIBIT LIST
99.1 Rights Agreement, dated as of October 15,
1996, between the Registrant and First Union
National Bank of North Carolina, as Rights
Agent (incorporated by reference to Exhibit
99.1 to the Registrant's Registration
Statement on Form 8-A filed with the
Commission on October 18, 1996).
99.2 Appointment Agreement and First Amendment to
Rights Agreement, by and among the Registrant,
First Union National Bank of North Carolina
and LaSalle National Bank, as successor Rights
Agent.
99.3 Letter, mailed on August 26, 1997, from the
Board of Directors of MedCath Incorporated to
Shareholders.
Exhibit 99.2
APPOINTMENT AGREEMENT AND FIRST AMENDMENT TO RIGHTS AGREEMENT
This Appointment Agreement and First Amendment to Rights
Agreement ("First Amendment") is made effective the 22nd day of August, 1997, by
and among MedCath Incorporated ("MedCath"), First Union National Bank of North
Carolina ("First Union") and LaSalle National Bank ("LaSalle"), and supplements
and amends that certain Rights Agreement, dated as of October 15, 1996, by and
between MedCath Incorporated and First Union, as Rights Agent (the "Rights
Agreement").
RECITALS
WHEREAS, MedCath and First Union have previously entered into
the Rights Agreement, pursuant to which First Union was appointed Rights Agent
thereunder; and
WHEREAS, MedCath desires to appoint, effective as of 12:00
a.m., E.D.T., September 2, 1997 (the "Appointment Time"), LaSalle as sole and
successor Rights Agent to First Union, and LaSalle desires to accept such
appointment; and
WHEREAS, the appointment of LaSalle requires certain
amendments to the Rights Agreement, as described herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties hereto agree as follows:
Section 1. Effective as of the Appointment Time, and subject
to Section 21 of the Rights Agreement, First Union resigns and is discharged
from its duties, as Rights Agent; provided, however, that, in connection with
the foregoing, MedCath hereby waives any right to advance notice thereof that it
may have pursuant to Section 21 of the Rights Agreement.
Section 2. Effective as of the Appointment Time, and pursuant
to Section 21 of the Rights Agreement, MedCath appoints LaSalle as successor
Rights Agent, and LaSalle accepts such appointment, such appointment to have the
effect set forth in Section 21 of the Rights Agreement. First Union agrees that
the execution and delivery of this First Amendment shall be deemed for all
purposes of the Rights Agreement to constitute the notice of the appointment of
a successor Rights Agent contemplated by Section 21 of the Rights Agreement.
Section 3. Effective as of the Appointment Time, all
references in the Rights Agreement, including without limitation in Section 3(c)
thereof (and in any Exhibit to the Rights Agreement, including without
<PAGE>
limitation the form of Right Certificate) to "First Union National Bank of North
Carolina" shall be deemed to be amended to be references to "LaSalle National
Bank."
Section 4. Section 1(d) of the Rights Agreement is hereby
amended by deleting therefrom the word "North Carolina" and substituting
therefor the word "Illinois."
Section 5. The fifth sentence of Section 21 of the Rights
Agreement is hereby amended by deleting therefrom the phrase "having an office
in the State of North Carolina".
Section 6. Section 26 of the Rights Agreement is hereby
amended by deleting therefrom the following:
First Union National Bank of North Carolina
230 South Tryon Street
Charlotte, North Carolina 28288
Attention: Shareholder Services
and substituting therefor:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Gregory P. Angelopoulos
Section 7. This First Amendment may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument. Terms not defined herein shall,
unless the context otherwise requires, have the meanings assigned to such terms
in the Rights Agreement.
Section 8. The Rights Agreement is hereby ratified, adopted,
approved and confirmed, as amended by this First Amendment.
Section 9. If any term, provision, covenant or restriction of
the Rights Agreement, as amended by this First Amendment, is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of the Rights
Agreement shall remain in full force and effect and in no way be affected,
impaired or invalidated.
Section 10. This First Amendment shall be deemed to be a
contract made under the laws of the State of North Carolina and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and attested, all as of the date and year first
above written.
MEDCATH INCORPORATED
By: /s/ Daniel L. Belongia
Name: Daniel L. Belongia
Title: VP Finance
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ D. Ann Harris
Name: D. Ann Harris
Title: Corporate Trust
Officer
LASALLE NATIONAL BANK
By: /s/ Gregory P. Angelopoulos
Name: Gregory P. Angelopoulos
Title: Assistant Vice President
Corporate Trust Administration
Exhibit 99.3
To our Shareholders:
Effective September 2, 1997, LaSalle National Bank will become the Transfer
Agent and Registrar for MedCath Incorporated's common stock, replacing First
Union National Bank of North Carolina.
In addition, LaSalle National Bank will become Rights Agent for the preferred
share purchase rights issued under the Company's shareholder rights plan,
replacing First Union National Bank of North Carolina. This notice is provided
to you pursuant to the terms of the Rights Agreement, dated as of October 15,
1996, between the Company and First Union National Bank of North Carolina. The
Company's common shareholders are holders of rights under the Rights Agreement
as described on the reverse side of the Company's common stock certificates.
This change of Rights Agent will in no way affect any of your rights under the
Rights Agreement or as a holder of rights certificates or of the Company's
common stock.
We anticipate that LaSalle National Bank will provide excellent service to us
and to you in this new capacity. Shareholder matters, such as the transfer of
shares, stock transfer requirements, missing stock certificates and changes of
address should be directed to LaSalle National Bank at the following address and
telephone number:
LaSalle National Bank
Attention: Corporate Trust Operations
135 South LaSalle Street, Room 1811
Chicago, IL 60603
Phone: 1-800-246-5761/Fax: 312-904-2236
Sincerely,
/s/ Stephen R. Puckett
Stephen R. Puckett
Chairman of the Board of Directors
President and Chief Executive Officer
