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
EXOGEN, INC.
------------
(Exact name of registrant as specified in charter)
- --------------------------------------------------------------------------------
Delaware 0-26154 22-3208468
(State of incorporation (Commission (IRS Employer
or organization) File Number) Identification No.)
10 Constitution Avenue, P.O. Box 6860, Piscataway, New Jersey, 08855
Registrant's telephone number, including area code: (732) 981-0990
Securities to be registered pursuant to Section 12(b) of the Act:
None
(Title of Class)
None
(Name of Exchange)
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
--------------------------------------------------------
On October 22, 1998, Exogen, Inc. (the "Company") amended its
Rights Agreement, dated December 6, 1996 (the "Rights Plan"), to eliminate those
provisions that require that certain actions may only be taken by "Continuing
Directors." This Amendment to the Rights Plan was made in response to the
Delaware Court of Chancery's recent decision in Carmody v. Toll Brothers, Inc.
In the view of the Company's Board of Directors, based on advice of counsel, the
Toll Brothers decision has cast doubt on the legality under Delaware law of
"Continuing Directors" provisions, also referred to as "dead-hand" provisions,
in many existing shareholder rights plans. Although the opinion related to the
denial of a motion to dismiss an action challenging the "Continuing Directors"
provision and not an opinion addressing the actual validity of the provision
under Delaware law, the Delaware court stated that a "Continuing Directors"
provision was open to challenge under Delaware law on both statutory and
fiduciary grounds. A "Continuing Directors" provision provides that outstanding
rights can only be redeemed by "continuing directors," which is generally
defined to mean directors who were members of the board at the time the Rights
Agreement was adopted and any other person who subsequently becomes a member of
the board if such person's nomination for election to the board was recommended
or approved by a majority of the continuing directors. While the Company's
Rights Plan differs in significant respects from the plan considered in the Toll
Brothers case, particularly as regards to the "Continuing Directors" provisions
thereof, the Board of Directors believes the disputed validity of these
provisions under the Toll Brothers opinion warrants action to amend the Rights
Plan. The Amendment to the Rights Agreement is attached hereto as Exhibit 1 and
is incorporated by reference herein.
Item 2. Exhibits.
---------
1 Amendment to the Company's Rights Agreement.
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.
EXOGEN, INC.
DATE: March 22, 1999 By: /s/ PATRICK A. MCBRAYER
-----------------------
Name: Patrick A. McBrayer
Title: President and Chief Executive Officer
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
------ --------------------
1 Amendment to the Company's Rights Agreement
EXHIBIT 1
FIRST AMENDMENT TO THE RIGHTS AGREEMENT
AND CERTIFICATION OF COMPLIANCE WITH SECTION 27 THEREOF
Pursuant to Section 27 of the Rights Agreement (the
"Agreement") dated as of December 6, 1996, between Exogen, Inc., a Delaware
corporation (the "Company"), and Registrar and Transfer Company, a banking
corporation (the "Rights Agent"), the Company and the Rights Agent hereby amend
the Agreement as of October 22, 1998, as provided below.
1. Certain Definitions. Section 1 of the Agreement shall be
amended as follows:
(a) In subsection (a)(iv) the phrase "a majority of the
Continuing Directors of the Company who are not Affiliates or Associates of such
Person or representatives of such Person or of any such Affiliate or Associate"
in the third, eighth, and fifteenth lines of the paragraph that begins
"Notwithstanding the foregoing" shall be replaced with the phrase "the Board of
Directors of the Company".
(b) In subsection (a)(iv) the word "Continuing" in the
eighteenth line of the paragraph that begins "Notwithstanding the foregoing"
shall be replaced with the words "Board of".
(c) The definition of Continuing Director shall be deleted.
(d) In subsection (l) the phrase "a majority of Continuing
Directors then in office" in the second and sixth lines shall be replaced with
the phrase "the Board of Directors of the Company".
(e) In subsection (t) the phrase "such tender offer occurs at
a time when Continuing Directors are in office and a majority of the Continuing
Directors then in office" shall be replaced with the phrase "the Board of
Directors of the Company".
(f) In subsection (t) the phrase "such Continuing Directors"
in the second to last line shall be replaced with the phrase "the Board of
Directors of the Company".
2. Reservation and Availability of Preferred Shares. Section
9(c) shall be amended by replacing the phrase "A majority of the Continuing
Directors" in the tenth line with the phrase "The Board of Directors of the
Company".
3. Redemption. Section 23 shall be amended as follows:
(a) The phrase "a majority of Continuing Directors" in the
fourth line of subsection (a) shall be replaced with the phrase "the Board of
Directors of the Company".
(b) The proviso in subsection (a) which reads "provided,
however, if the Board of Directors of the Company authorizes redemption of the
Rights on or after the time a Person becomes an Acquiring Person, then there
must be Continuing Directors then in office and such authorization shall require
the concurrence of a majority of such Continuing Directors" shall be deleted.
<PAGE>
4. Exchange. Section 24 shall be amended by replacing the
phrase "and a majority vote of the Continuing Directors" with the phrase "of the
Company".
5. Supplements and Amendments. Section 27 shall be amended by
deleting the phrase "(which lengthening or shortening, following the first
occurrence of an event set forth in the proviso to Section 23(a) hereof, shall
be effective only if there are Continuing Directors and shall require the
concurrence of a majority of such Continuing Directors)" in the eighth line.
6. Determinations and Actions by the Board of Directors, etc.
Section 29 shall be amended as follows:
(a) The phrase "(and, where specifically provided for herein,
the Continuing Directors)" in the sixth line shall be deleted.
(b) The phrase "(or, where specifically provided for herein,
the Continuing Directors)" in the ninth and sixteenth lines shall be deleted.
(c) The phrase "or the Continuing Directors" in the last line
shall be replaced with "of Directors of the Company".
7. Exhibit C: Summary of Rights.
(a) The Distribution Date summary shall be amended by
replacing the phrase "a majority of the Directors not affiliated with
the acquiring person or group (the "Continuing Directors")) with the
phrase "the Board of Directors of the Company".
(b) The Redemption of the Rights summary shall be amended by
replacing the phrase "a majority of the Continuing Directors" with the
phrase "the Board of Directors of the Company".
<PAGE>
The undersigned officer of the Company, being an appropriate officer of
the Company and authorized to do so by resolution of the board of directors of
the Company dated as of October 22, 1998, hereby certifies to the Rights Agent
that these amendments are in compliance with the terms of Section 27 of the
Agreement.
Exogen, Inc.
By: /s/ PATRICK A. MCBRAYER
-----------------------
Name: Patrick A. McBrayer
Title: Chief Executive Officer
and President
Acknowledged and Agreed:
Registrar and Transfer Company,
as Rights Agent
By: /s/ WILLIAM P. TATLER
---------------------
Name: William P. Tatler
Title: Vice-President
