UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 19, 2001
Access Pharmaceuticals, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 83-0221517
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
2600 Stemmons Freeway, Suite 176, Dallas, Texas 75207
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (214) 905-5100
Item 5. Other Events.
On October 19, 2001, the Board of Directors of Access Pharmaceuticals, Inc.
(the "Company") declared a dividend of one fractional preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $0.01
per share (the "Common Shares"), of the Company. The dividend is payable
on November 9, 2001 (the "Record Date") to the stockholders of record on that
date. Except as described below, each Right, when exercisable, entitles the
registered holder to purchase from the Company one one-hundredth of a share
of Series A Junior Participating Preferred Stock of the Company, par value
$0.01 per share (the "Preferred Shares"), at a price of $30 per one one-
hundredth of a Preferred Share (the "Purchase Price"), subject to adjustment
or substitution of other securities of the Company in place of the Preferred
Shares. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement"), dated as of October 31, 2001, between
the Company and American Stock Transfer & Trust Company, a New York
corporation, as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all certificates representing Common
Shares then outstanding, and no separate Rights certificates will be
distributed. Until the earlier to occur of (i) 10 business days following a
public announcement that a person or group of affiliated or associated persons
(an "Acquiring Person") have acquired beneficial ownership of 15% or more, or
in the case of Heartland Advisors, Inc., together with any of its affiliated or
associated persons ("Heartland"), or Oracle Partners LP, together with any of
its affiliated or associated persons (including, but not limited to Oracle
Institutional Partners LP, Sam Oracle Investments Inc., and Oracle Offshore
Ltd.)("Oracle"), have acquired beneficial ownership of 20% or more, of the
outstanding Common Shares (the date of such an announcement being a "Shares
Acquisition Date"), 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
becomes an Acquiring Person) following the commencement of, or first public
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, or in the case of Heartland or Oracle, 20% or more,
of such outstanding Common Shares (in either case, (i) or (ii), 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 certificates together with a copy of the Summary of Rights to Purchase
Preferred Shares (the "Summary of Rights") delivered to each record holder of
the Common Shares on or as soon as practicable after the Record Date.
The Rights Agreement provides that, until the Distribution Date, the Rights will
be transferable 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
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 ("Rights Certificates") will be mailed to holders of
record of the Common Shares as of the close of business on the Distribution
Date, and the separate Rights Certificates alone will evidence the Rights.
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The Rights are not exercisable until the Distribution Date. The Rights will
expire on October 31, 2011 (the "Final Expiration Date"), unless the Rights are
earlier redeemed by the Company, 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 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 anti-dilution 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.
If, after the first date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such, the Company is involved in
a merger or other business combination transaction in which the Common
Shares are exchanged or changed, or 50% or more of the Company's
consolidated assets or earning power are sold (in one transaction or a series of
transactions), proper provision will be made so that each holder of a Right
(other than an Acquiring Person) 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 (or, in the event
there is more than one acquiring company, the acquiring company receiving the
greatest portion of the assets or earning power transferred) which at the time
of such transaction would have a market value of two times the exercise price
of the Right.
If any person becomes an Acquiring Person, each holder of a Right will
thereafter have the right to receive upon exercise that number of Common
Shares having a market value of two times
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the exercise price of the Right. Upon occurrence of any of the events described
in the immediately preceding sentence, any Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by
any Acquiring Person shall immediately become null and void.
At any time after the occurrence of any such event and prior to the acquisition
by such person or group of 50% or more of the outstanding Common Shares,
the Board of Directors may exchange the Rights (other than Rights owned by
such person or group which 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 (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) will be issued
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 earlier of (i) the tenth day after a Shares Acquisition
Date, or (ii) the expiration of the Rights, the Board of Directors may redeem
the Rights in whole, but not in part, at a price of $0.001 per Right (the
"Redemption Price"). The redemption of the Rights may be made effective at
such time on such basis and 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.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by
the Board in order to cure any ambiguity, to correct or supplement any
provision of the Rights Agreement that may be defective or inconsistent with
any other provisions therein, to make changes that 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.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a stockholder 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. 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 $0.001 per
Right prior to the time that a person or group has acquired beneficial ownership
of 15% or more of the Common Shares, or in the case of Heartland or Oracle,
has acquired beneficial ownership of 20% or more of the Common Shares.
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The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit B thereto the form
of Rights Certificate, is attached hereto as an exhibit. The Rights Agreement,
including all exhibits, is hereby incorporated herein by reference. The
foregoing description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
99.1 Rights Agreement, dated as of October 31, 2001 between the Company
and American Stock Transfer & Trust Company, as Rights Agent.
99.2 Press Release, dated November 6, 2001.
99.3 Form of Certificate of Designations, included as Exhibit A to item 99.1
above.
99.4 Form of Rights Certificate, included as Exhibit B to item 99.1 above.
99.5 Summary of Rights, included as Exhibit C to item 99.1 above.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACCESS PHARMACEUTICALS, INC.
By: /s/ Kerry P. Gray
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Name: Kerry P. Gray
Title: President and
Chief Executive Officer
Date: November 6, 2001