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8-A12G
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BIOPSYS MEDICAL, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 33-0578012
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(State of incorporation or organization) (IRS Employer Identification No.)
3 Morgan
Irvine, California 92618
(Address of principal executive offices) (Zip Code)
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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
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value per share
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(Title of Class)
Preferred Stock Purchase Rights
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(Title of Class)
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Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
The authorized capital stock of Biopsys Medical, Inc. (the
"Company") consists of 50,000,000 shares of Common Stock, $.001 par value per
share, and 5,000,000 shares of Preferred Stock, $.001 par value per share.
As of October 25, 1996, 9,716,880 shares of Common Stock were outstanding,
held of record by approximately 178 stockholders. No shares of Preferred
Stock were outstanding as of October 25, 1996, although the Company's board
of directors had approved the designation of 50,000 shares of the Preferred
Stock had been designated Series A Participating Preferred Stock, $.001 par
value. In addition, each outstanding share of Common Stock represented the
Preferred Share Purchase Right related thereto.
COMMON STOCK, $.001 PAR VALUE PER SHARE
The holders of Common Stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Subject to preferences that may
be applicable to any outstanding Preferred Stock, the holders of Common Stock
are entitled to receive ratably such dividends, if any, as may be declared from
time to time by the Board of Directors out of funds legally available for that
purpose. In the event of a liquidation, dissolution or winding up of the
Company, the holders of Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior distribution rights of
Preferred Stock, if any, then outstanding. The Common Stock has no preemptive
or conversion rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the Common Stock. All outstanding shares
of Common Stock are fully paid and nonassessable.
PREFERRED SHARES PURCHASE RIGHTS
Pursuant to the Preferred Shares Rights Agreement (the "Rights
Agreement") dated as of November 8, 1996, between the Company and Norwest Bank
Minnesota, N.A., as Rights Agent (the "Rights Agent"), the Company's Board of
Directors declared a dividend of one right (a "Right") to purchase one one-
thousandth share of the Company's Series A Participating Preferred Stock
("Series A Preferred") for each outstanding share of Common Stock ("Common
Shares") of the Company. The dividend is payable on January 8, 1997 (the
"Payment Date") to stockholders of record as of the close of business on
November 8, 1996 (the "Payment Date"). 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 $90.00 (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 3 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 stockholders and the Rights
will attach to and trade only together with the Common Shares.
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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, 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, Rights
Certificates will be issued and the Rights will become exercisable upon the
earlier of: (i) 10 days (or such later date as may be determined by a majority
of the Board of Directors, excluding directors affiliated with the Acquiring
Person, as defined below (the "Continuing Directors")) following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, 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 a majority of the Continuing
Directors) 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 is referred to as the "Distribution
Date."
ISSUANCE OF RIGHTS CERTIFICATES; EXPIRATION OF RIGHTS. As soon as
practicable following the Distribution Date, separate Rights 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 Rights Certificates alone will
evidence the Rights from and after the Distribution Date. All Common Shares
issued prior to the Distribution Date will be issued with Rights. Common Shares
issued after the Distribution Date may be issued with Rights if such shares are
issued (i) upon the conversion of outstanding convertible debentures or any
other convertible securities issued after adoption of the Rights Agreement or
(ii) pursuant to the exercise of stock options or under employee benefit plans
or arrangements unless such issuance would result in (or create a risk that)
such options, plans or arrangements would not qualify for otherwise available
special tax treatment. Except as otherwise determined by the Board of
Directors, no other Common Shares issued after the Distribution Date will be
issued with Rights. The Rights will expire on the earliest of (i) November 8,
2006 (the "Final Expiration Date"), (ii) redemption or exchange of the Rights as
described below, or (iii) consummation of an acquisition of the Company
satisfying certain conditions by a person who acquired shares pursuant to a
Permitted Offer 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 $90.00 per Right, 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.
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RIGHT TO BUY COMPANY COMMON SHARES. Unless the Rights are earlier
redeemed, in the event that an Acquiring Person becomes the beneficial owner of
15% or more of the Company's Common Shares then outstanding (other than pursuant
to a Permitted Offer), 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 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 the Shares Acquisition Date (as
defined below), (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 (unless
the transaction satisfies certain conditions and is consummated with a person
who acquired shares pursuant to a Permitted Offer, in which case the Rights will
expire).
PERMITTED OFFER. A Permitted Offer means a tender offer for all
outstanding Common Shares that has been determined by a majority of the
Continuing Directors to be adequate and otherwise in the best interests of the
Company and its stockholders. Where the Board of Directors has determined that
a tender offer constitutes a Permitted Offer, the Rights will not become
exercisable to purchase Common Shares or shares of the acquiring company (as the
case may be) at the discounted price described above.
EXCHANGE PROVISION. At any time after the acquisition by an Acquiring
Person of 15% or more of the Company's outstanding Common Shares 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 on or prior to the close of business on the
earlier of (i) the 10th day following the acquisition by an Acquiring Person
(the "Share Acquisition Date") or such later date as may be determined by a
majority of the Continuing Directors and publicly announced by the Company, or
(ii) the Final Expiration Date of the Rights, the Company may redeem the Rights
in whole, but not in part, at a price of $.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.
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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 STOCKHOLDERS' RIGHTS PRIOR TO EXERCISE. Until a Right is exercised, the
holder thereof, 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.
AMENDMENT OF RIGHTS AGREEMENT. The provisions of the Rights Agreement may
be supplemented or amended by the Board of Directors in any manner prior to the
close of business on the Distribution Date without the approval of Rights
holders. After the Distribution Date, the provisions of the Rights Agreement
may be amended by the Board 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 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 SERIES A PREFERRED. Series A Preferred
purchasable upon exercise of the Rights will not be redeemable. Each share of
Series A Preferred will be entitled to an aggregate dividend of 1,000 times the
dividend declared per Common Share. In the event of liquidation, the holders of
the Series A Preferred will be entitled to a minimum preferential liquidation
payment equal to the greater of (i) $90,000 per share or (ii) 1,000 times the
per share amount to be distributed to the holders of the Common Shares. Each
share of Series A Preferred will have 1,000 votes, voting together with the
Common Shares. In the event of any merger, consolidation or other transaction
in which the Common Shares are changed or exchanged, each share of Series A
Preferred will be entitled to receive 1,000 times the amount received per Common
Share. These rights are protected by customary anti-dilution provisions.
Because of the nature of the dividend, liquidation and voting rights of the
shares of Series A Preferred, the value of the one one-thousandth interest in a
share of Series A Preferred purchasable upon exercise of each Right should
approximate the value of one Common Share.
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 acquiror 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 stockholders of any real opportunity to
determine the destiny of the Company or to evaluate and protect the long-term
value of the Company. The Rights are not intended to prevent a takeover of the
Company. The Rights may be redeemed by the Company at $.001 per Right within
ten days (or such later date as may be determined by a majority of the Board of
Directors, excluding directors affiliated with an Acquiring Person) after the
accumulation of 15% or more of the Company's shares by
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a single acquiror or group. 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 stockholders, 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.
CHARTER PROVISIONS RELATING TO A CHANGE IN CONTROL
Certain provisions of the Certificate of Incorporation and Bylaws of
the Company may be considered to have anti-takeover implications. Such
provisions could discourage certain attempts to obtain control of the Company,
even though such attempts might be beneficial to the Company and its
stockholders.
CLASSIFIED BOARD OF DIRECTORS. The Company's Certificate of
Incorporation provides that the Board of Directors shall be divided into three
classes of directors with each class serving a staggered three-year term. The
classification system of electing directors may tend to discourage a third party
from making a tender offer or otherwise attempting to obtain control of the
Company and may maintain the incumbency of the Board of Directors, as the
classification of the Board of Directors generally increases the difficulty of
replacing a majority of the directors.
NOMINATIONS OF DIRECTOR CANDIDATES AND INTRODUCTION OF BUSINESS AT
STOCKHOLDER MEETINGS. The Bylaws of the Company contain an advance notice
procedure with regard to the nomination, other than by or at the direction of
the Board of Directors, of candidates for election as directors (the "Nomination
Procedure") and with regard to certain matters to be brought before any meeting
of stockholders (the "Business Procedure"). The Nomination Procedure provides
that only persons nominated by or at the direction of the Board of Directors or
by a stockholder who has given timely written notice in proper form to the
Secretary of the Company prior to the meeting, will be eligible for election as
directors. The Business Procedure provides that at a meeting of stockholders
only such business may be conducted as has been brought before the meeting by or
at the direction of the Board of Directors or by a stockholder who has given
timely written notice in proper form to the Secretary of the Company prior to
the meeting of such stockholder's intention to bring business before the
meeting.
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AUTHORIZED STOCK. The Certificate of Incorporation of the Company
authorizes 5,000,000 shares of Preferred Stock, with a par value of $.001 per
share. The Certificate of Incorporation authorizes the Board of Directors to
fix without further vote or action by the stockholders the designation, powers,
preferences, and rights of the shares of each series of Preferred Stock and the
qualifications, limitations or restrictions thereof including, but not limited
to, dividend rights, conversion privileges, voting rights, terms of redemption
and liquidation preferences.
MONETARY LIABILITY OF DIRECTORS. The Certificate of Incorporation of
the Company provides that to the fullest extent permitted by Delaware law, no
director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Certificate of Incorporation also incorporates any future amendments to
Delaware law with respect to the elimination of such liability.
ACTIONS BY WRITTEN CONSENT OF STOCKHOLDERS AND CALLING OF SPECIAL
MEETING. The Certificate of Incorporation of the Company provides that no
action may taken by the stockholders by written consent, and that stockholder
actions may only be taken at an annual or special meeting of stockholders. The
Company's Bylaws also provide that stockholders may not call special meetings of
stockholders.
Item 2. EXHIBITS.
1. Specimen certificate for the Company's Common Stock (1)
2. Certificate of Incorporation of the Company (2)
3. Preferred Shares Rights Agreement, dated as of November 8, 1996,
between Biopsys Medical, Inc. and Norwest Bank Minnesota, N.A.,
including the Certificate of Designations, the form of Rights
Certificate and the Summary of Rights attached thereto as
Exhibits A, B and C, respectively (3)
4. Bylaws of the Company (4)
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(1) Incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Commission File No. 333-2498) declared effective by
the Commission on April 30, 1996 (the "S-1 Registration Statement).
(2) Incorporated by reference to Exhibit 3.3 to the S-1 Registration Statement.
(3) Exhibit filed herewith.
(4) Incorporated by reference to Exhibit 3.5 to the S-1 Registration Statement.
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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.
BIOPSYS MEDICAL, INC.
Date: November 8, 1996
By: /s/ Steven L. Gex
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Steven L. Gex,
President and Chief Executive
Officer
EXHIBIT 3
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