SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PENEDERM INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
California 77-014611
(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
320 Lakeside Drive, Foster City, California 94404
(Address of principal executive offices) (Zip Code)
If this Form relates to the If this form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with the
Instruction A(c)(1) please check effectiveness of a concurrent
the following box. registration statement under the
_________ Securities Act of 1933 pursuant
to General Instruction A(c)(2)
please check the following box.
________
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
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Common Stock
(Title of class)
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
In connection with the Rights Agreement, dated as of November 20, 1996
(the "Rights Agreement"), between Penederm Incorporated (the "Company")
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent (the "Rights
Agent"), the Company's Board of Directors has declared a dividend of one right
("Right") for each outstanding share of Common Stock, no par value, of the
Company (the "Common Shares"). The dividend is payable on December 12, 1996
to shareholders of record as of the close business on December 2, 1996.
Each Right entitles the registered holder to purchase from the Company one
Common Share at an exercise price of $50 (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,
including the form of Rights Certificate and the Summary of Rights attached
to the Rights Agreement as Exhibits A and B, is filed as Exhibit 1 to this
Registration Statement and is incorporated herein by reference. A copy of
the Rights Agreement is available to shareholders free of charge from the
Company.
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 shareholders and the Rights will attach to and trade only together
with the Common Shares before the Distribution Date. Accordingly, Common
Share certificates outstanding on December 12, 1966 will evidence the Rights
related thereto, and Common Share certificates issued after that 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 December 2, 1996, 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) ten days after the first date of public announcement (the "Stock
Acquisition Date") that a person or group of affiliated or associated persons
(an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the outstanding Common Shares in a
transaction not approved by the Continuing Board, or (ii) ten days following
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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 20% or more of the outstanding Common
Shares in a transaction not approved by the Continuing Board. The earlier of
such dates is referred to as the "Distribution Date." The term "Continuing
Board," as used in this Registration Statement, means a majority of the
members of the Company's Board of Directors who are not affiliated or
associated with an Acquiring Person (or, if there is no Acquiring Person, not
affiliated or associated with a person or group that proposes to become an
Acquiring Person) and who either served as directors on November 20, 1996 or
were subsequently nominated by a majority of those directors and others so
nominated.
The definition of Acquiring Person specifically excludes (i) the Company,
(ii) any subsidiary of the Company, (iii) any employee benefit plan of the
Company, (iv) any person who becomes an Acquiring Person solely as a result of
reduction in the number of Common Shares outstanding due to the repurchase of
Common Shares by the Company (unless and until such person shall purchase
additional Common Shares constituting 1% or more of the then outstanding
Common Shares) and (v) persons acquiring shares in the ordinary course of
business and without the purpose or effect of changing or influencing control
of the Company (e.g., acquisitions by registered investment advisors,
broker/dealers or others permitted to report their acquisitions on Schedule
13G) who do not acquire 30% or more of the Common Shares then outstanding.
Issuance of Rights Certificates
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 then evidence the Rights from and after the
Distribution Date. All Common Shares issued before the Distribution Date will
be issued with Rights. Common Shares issued after the Distribution Date and
before the redemption or expiration of the Rights, (a) shall, with respect to
Common Shares so issued or sold pursuant to the exercise of stock options or
warrants or under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities hereinafter issued by the Company, and
(b) may, in any other case, if deemed necessary or appropriate by the Board,
be issued with Rights in connection with such issuance or sale; provided,
however, that (i) no such Rights shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
person to whom such Rights would be issued, and (ii) no such Rights shall be
issued if, and to the extent that, appropriate adjustment shall otherwise
have been made in lieu of the issuance thereof.
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Expiration of Rights
The Rights will expire on the earliest of (i) December 12, 2006 (the
"Final Expiration Date"), or (ii) redemption or exchange of the Rights
as described below.
Initial Right to Buy Shares
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 $50 per Right, one Common Share. If the Company
does not have sufficient Common Shares available for all Rights to be
exercised or the Board of Directors decides that such action is necessary
and not contrary to the interest of Rights holders, the Company may instead
substitute cash, assets or other securities for the Common Shares (for
example, preferred stock) for which the Rights would have been exercisable.
Right to Buy Additional Common Shares
Unless the Rights are earlier redeemed or expire, if a person or group of
associated or affiliated persons becomes the beneficial owner of 20% or more
of the Common Shares then outstanding (other than pursuant to a transaction
approved by the Continuing Board), 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 or an affiliate or associate
of the Acquiring Person, which will thereafter be void) will thereafter have
the right to receive, upon exercise of the Rights, Common Shares (or, in
certain circumstances as determined by the Board of Directors, cash, other
property or other securities) 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 Shares
Similarly, unless the Rights are earlier redeemed or expire, if, after a
Stock Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction, or (ii) 50% or more of the Company's assets
or earning power is 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 or an affiliate or associate of the Acquiring Person,
which will thereafter be void) will thereafter have the right to receive, upon
exercise of the Rights, shares of common stock of the acquiring company (or
the equity securities or other equity interest having power to control or
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direct the management of the acquiring company) having a value equal to two
times the Purchase Price.
Continuing Board Approval
The Rights will not become exercisable upon the acquisition of 20% or
more of the Company's outstanding Common Shares by a person or group of
associated or affiliated persons if the Continuing Board approves that
acquisition.
Exchange Provision
At any time after any Person becomes an Acquiring Person, the Continuing
Board may cause the Company to exchange the Rights (other than Rights owned by
the Acquiring Person), in whole or in part, for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted to reflect any
stock split, reverse stock split, reclassification, stock dividend or similar
transaction occurring after the date of the Rights Agreement.
Redemption
At any time on or before the close of business on the earlier of (i) the
tenth day after the Stock Acquisition Date, or (ii) the Final Expiration Date,
the Company may redeem the Rights in whole, but not in part, at a price of
$.01 per Right.
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights, and the number of
Common Shares or other securities issuable upon exercise of the Rights are
subject to adjustment from time to time in connection with dilutive issuances
by the Company as set forth in the Rights Agreement.
Cash Paid for Fractional Shares
No fractional portion less than integral multiples of one Common Share
will be issued upon exercise of a Right. In lieu of fractional shares, an
adjustment in cash will be made based on the market price of the Common Shares
on the last trading date before the date of exercise.
No Rights as Shareholder Before Exercise
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.
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Amendment of Rights Agreement
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 Continuing Board before the Distribution Date. After the Distribution
Date, the Rights Agreement may only be amended by the Continuing Board, and
then only in order to cure any ambiguity, to correct or supplement any
provision of the Rights Agreement which may be defective or inconsistent with
any other provision of the Rights Agreement, to make changes which do not
adversely affect the interests of holders of Rights (excluding the interest
of any Acquiring Person or an affiliate or associate of an Acquiring Person),
to shorten or lengthen any time period under the Rights Agreement or to lower
to not less than 10% the threshold of beneficial ownership of Common Shares
that will trigger a Distribution Date and will cause a person or group to
become an Acquiring Person. However, no amendment to lengthen the time
period governing redemption shall be made at such time as the Rights are not
redeemable, and no amendment to lengthen any other time period shall be made
unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights
(other than any Acquiring Person or an affiliate or associate of an Acquiring
Person).
Certain Anti-Takeover Effects
The Rights are designed to protect and maximize the value of the
outstanding equity interests in the Company in the event of an attempt by an
acquiror to take over the Company in a manner or on terms not approved by the
Continuing Board, including a gradual accumulation of shares in the open
market of a 20% or greater position and perhaps followed by a merger or a
partial or two-tier tender offer that does not treat all shareholders fairly.
These tactics can unfairly pressure shareholders, squeeze them out of their
investment without giving them meaningful choices and deprive them of the
ability to receive the full value of their shares.
The Rights are not intended to prevent all acquisitions of the Company.
However, they are intended to deter any attempt to acquire the Company
in a manner or on terms not approved by the Continuing Board. The Rights may
be redeemed by the Company at $.01 per Right within ten days (or such later
date as may be determined by the Continuing Board) after the accumulation of
20% or more of the Company's shares by a single acquiror or group. In
addition, the Continuing Board may approve such an accumulation in advance,
without redeeming the Rights. Accordingly, the Rights should not interfere
with any merger or business combination approved by the Continuing Board.
Issuance of the Rights does not in any way weaken the financial strength
of the Company or interfere with its business plans. The issuance has no
dilutive effect, will not affect reported earnings per share, should not be
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taxable to the Company or to its shareholders, 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 presented in a takeover
situation.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed coercive or otherwise
undesirable by the Continuing Board. 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 Continuing Board, except pursuant to an
offer conditioned upon the purchase or redemption of the Rights or a judicial
declaration that the Rights are invalid.
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Item 2. EXHIBITS
1. Rights Agreement, dated as of November 20, 1996, between Penederm
Incorporated and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, including the form of Rights Certificate and the Summary of
Rights attached thereto as Exhibits A and B, respectively.
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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, hereunto duly authorized.
PENEDERM INCORPORATED
Date: November 20, 1996 By: /s/ Lloyd H. Malchow
Lloyd H. Malchow
President and Chief
Executive Officer
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EXHIBIT INDEX
No. Exhibit Exhibit
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1. Rights Agreement dated as of November 20,
1996, between Penederm Incorporated and
ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, including the form of Rights
Certificate and the Summary of Rights
attached thereto as Exhibits A and B,
respectively.
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