SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------
FORM 10/A
Amendment No. 2
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF 1934
U.S. Bioscience, Inc.
- --------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 23-2460100
- -------------------------------- -------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Tower Bridge, 100 Front Street, Suite 400
- ---------------------------------------------
West Conshohocken, Pennsylvania 19428
- --------------------------------------------- -------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (610) 832 - 0570
----------------
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
------------------- ------------------------------
Common Stock, par value $.01 per share American Stock Exchange
- -------------------------------------- ------------------------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
- -------------------------------------------------------------------------
(Title of class)
Item 11, "Description of Registrant's Securities to be Registered,"
is hereby amended and restated in its entirety as follows:
ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Common Stock
- ------------
The Registrant is authorized to issue 55,000,000 shares, consisting
of 50,000,000 shares of Common Stock, $.01 par value (the "Common Stock"),
and 5,000,000 shares of Preferred Stock, $.005 par value (the "Preferred
Stock").
The following statements are brief summaries of certain provisions
with respect to the Registrant's capital stock contained in its
Certificate of Incorporation and the Delaware General Corporation Law.
The following summary is qualified in its entirety by reference thereto.
Holders of Common Stock are entitled to receive, as, when, and if
declared by the Board of Directors from time to time such dividends other
distributions in cash, stock or property of the Registrant out of assets
or funds of the Registrant legally available therefor. In the event of
any liquidation, dissolution or winding-up of the affairs of the
Registrant, the holders of Common Stock will be entitled to share ratably
in its assets remaining after provision for payment of creditors, subject
to the rights of any Preferred Stock then outstanding. Holders of Common
Stock do not have statutory preemptive rights to purchase additional
shares.
Holders of Common Stock are entitled to one vote for each share on
all matters voted upon by stockholders, including the election of
directors. Shares of Common Stock do not have cumulative voting rights,
which means that the holders of more than 50% of such shares voting for
the election of directors can elect 100% of the directors if they choose
to do so and, in such event, the holders of the remaining shares so voting
will not be able to elect any directors. Holders of Common Stock do not
have any conversion, redemption or preemptive rights. In the event of the
dissolution, liquidation or winding up of the Registrant, holders of
Common Stock will be entitled to share ratably, together with any
participating preferred shares then outstanding, in any assets remaining
after the satisfaction in full of the prior rights of creditors, including
holder of Registrant indebtedness, and the liquidation preference of any
preferred shares then outstanding.
Rights to Purchase Series A Junior Preferred Stock
- --------------------------------------------------
On May 19, 1995, the Board of Directors of the Registrant declared a
dividend of one Preferred Stock Purchase Right (the "Right(s)") for each
outstanding share of Common Stock, par value $0.005 per share, of the
Registrant. Each Right entitles the registered holder to purchase from
the Registrant one one-hundredth (1/100) of a share of a new series of
preferred shares of the Registrant, designated as Series A Junior
Preferred Stock ("Preferred Stock"), at a price of $15 per one one-
hundredth (1/100) of a share (the "Exercise Price"), subject to certain
-1-
adjustments. The description and terms of the Rights are set forth in a
Rights Agreement, dated as of May 19, 1995 (the "Rights Agreement"),
between the Registrant and Chemical Mellon Shareholder Services L.L.C., as
Rights Agent ("Rights Agent").
Effective the close of business April 22, 1996 the Certificate of
Incorporation of the Registrant was amended to effect a 1-for-2 reverse
stock split of the Registrant's Common Stock. As part of the reverse
split the par value of the Common Stock was increased from $.005 per share
to $.01 per share. The effect of the 1-for-2 reverse stock split on the
Rights was to increase the number of shares of Series A Junior Preferred
Stock of the Registrant purchasable upon exercise of a Right, should it
become exercisable, from one one-hundredth (1/100) of a share of Series A
Junior Preferred Stock to two one-hundredths (2/100) of a share of Series
A Junior Preferred Stock, and to increase the exercise price of a Right
from $15 to $30. Initially the Rights were not exercisable,
certificates were not sent to stockholders, and the Rights automatically
trade with the Common Stock.
The Rights, unless earlier redeemed by the Board of Directors, will
become exercisable upon the close of business on the day (the
"Distribution Date") which is the earlier of (i) the tenth day following a
public announcement that a person or group of affiliated or associated
persons, with certain exceptions set forth below, has acquired beneficial
ownership of 15% or more of the outstanding voting stock of the Registrant
(an "Acquiring Person") and (ii) the tenth business day (or such later
date as may be determined by the Board of Directors prior to such time as
any person or group of affiliated or associated persons becomes an
Acquiring Person) after the date of the commencement or announcement of a
person's or group's intention to commence a tender or exchange offer the
consummation of which would result in the ownership of 30% or more of the
Registrant's outstanding voting stock (even if no shares are actually
purchased pursuant to such offer); prior thereto, the Rights would not be
exercisable, would not be represented by a separate certificate, and would
not be transferable apart from the Registrant's Common Stock, but will
instead be evidenced, with respect to any of the Common Stock certificates
outstanding as of May 29, 1995, by such Common Stock certificate with a
copy of this Summary of Rights attached thereto. An Acquiring Person does
not include (A) the Registrant, (B) any subsidiary of the Registrant, (C)
any employee benefit plan or employee stock plan of the Registrant or of
any subsidiary of the Registrant, or any trust or other entity organized,
appointed, established or holding Common Stock for or pursuant to the
terms of any such plan or (D) any person or group whose ownership of 15%
or more of the shares of voting stock of the Registrant then outstanding
results solely from (i) any action or transaction or transactions approved
by the Board of Directors before such person or group became an Acquiring
Person or (ii) a reduction in the number of issued and outstanding shares
of voting stock of the Registrant pursuant to a transaction or
transactions approved by the Board of Directors (provided that any person
or group that does not become an Acquiring Person by reason of clause (i)
or (ii) above shall become an Acquiring Person upon acquisition of an
additional 1% of the Registrant's voting stock unless such acquisition of
additional voting stock will not result in such person or group becoming
an Acquiring Person by reason of such clause (i) or (ii)).
-2-
Until the Distribution Date (or earlier redemption or expiration of
the Rights), new Common Stock certificates issued after May 29, 1995 will
contain a legend incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier redemption or expiration of the Rights),
the surrender for transfer of any of the Registrant's Common Stock
certificates outstanding as of May 29, 1995 with or without a copy of the
Summary of Rights attached, will also constitute the transfer of the
Rights associated with the Common Stock 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 Registrant's Common Stock as of the close of
business on the Distribution Date and such separate certificates alone
will evidence the Rights from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the close of business on May 19, 2005, unless
earlier redeemed by the Registrant as described below.
The Preferred Stock is non-redeemable and, unless otherwise provided
in connection with the creation of a subsequent series of preferred stock,
subordinate to any other series of the Registrant's preferred stock. The
Preferred Stock may not be issued except upon exercise of Rights. Each
share of Preferred Stock will be entitled to receive when, as and if
declared, a quarterly dividend in an amount equal to the greater of $1.00
per share and 50 times the cash dividends declared on the Registrant's
Common Stock. In addition, the Preferred Stock is entitled to 50 times any
non-cash dividends (other than dividends payable in equity securities)
declared on the Common Stock, in like kind. In the event of liquidation,
the holders of Preferred Stock will be entitled to receive for each share
of Series A Preferred Stock, a liquidation payment in an amount equal to
the greater of $1,500 or 50 times the payment made per share of Common
Stock. Each share of Preferred Stock will have 50 votes, voting together
with the Common Stock. In the event of any merger, consolidation or other
transaction in which Common Stock is exchanged, each share of Preferred
Stock will be entitled to receive 50 times the amount received per share
of Common Stock. The rights of Preferred Stock as to dividends,
liquidation and voting are protected by anti-dilution provisions.
The number of shares of Preferred Stock issuable upon exercise of the
Rights, and the Exercise Price, are subject to certain adjustments from
time to time in the event of a stock dividend on, or a subdivision or
combination of, the Common Stock. The Exercise Price for the Rights is
subject to adjustment in the event of extraordinary distributions of cash
or other property to holders of Common Stock.
Unless the Rights are earlier redeemed or the transaction is approved
by the Board of Directors and the Continuing Directors (as defined in the
Rights Agreement), in the event that, after the time that the Rights
become exercisable, the Registrant were to be acquired in a merger or
other business combination (in which any shares of the Registrant's Common
Stock are changed into or exchanged for other securities or assets) or
more than 50% of the assets or earning power of the Registrant and its
subsidiaries (taken as a whole) were to be sold or transferred in one or a
series of related transactions, the Rights Agreement provides that proper
-3-
provision will be made so that each holder of record of a Right will from
and after such date have the right to receive, upon payment of the
Exercise Price, that number of shares of common stock of the acquiring
Registrant having a market value at the time of such transaction equal to
two times the Exercise Price. In addition, unless the Rights are earlier
redeemed, if a person or group (with certain exceptions) becomes the
beneficial owner of 15% or more of the Registrant's voting stock (other
than pursuant to a tender or exchange offer (a "Qualifying Tender Offer")
for all outstanding shares of Common Stock that is approved by the Board
of Directors, after taking into account the long-term value of the
Registrant and all other factors they consider relevant in the
circumstances), the Rights Agreement provides that proper provision will
be made so that each holder of record of a Right, other than the Acquiring
Person (whose Rights will thereupon become null and void), will thereafter
have the right to receive, upon payment of the Exercise Price, that number
of shares of the Registrant's Preferred Stock having a market value at the
time of the transaction equal to two times the Exercise Price (such market
value to be determined with reference to the market value of the
Registrant's Common Stock as provided in the Rights Agreement).
Fractions of shares of Preferred Stock (other than fractions that are
integral multiples of one one-hundredth (1/100) of a share) may, at the
election of the Registrant, be evidenced by depositary receipts. The
Registrant may also issue cash in lieu of fractional shares which are not
integral multiples of one one-hundredth (1/100) of a share.
At any time on or prior to the close of business on the tenth day
after the time that a person has become an Acquiring Person (or such later
date as a majority of the Board of Directors and a majority of the
Continuing Directors may determine), the Registrant may redeem the Rights
in whole, but not in part, at a price of $.001 per Right ("Redemption
Price"). The Rights may be redeemed after the time that any Person has
become an Acquiring Person only if approved by a majority of the
Continuing Directors. Immediately upon the effective time of the action
of the Board of Directors of the Registrant authorizing redemption of the
Rights, the right to exercise the Rights will terminate and the only right
of the holders of the Rights will be to receive the Redemption Price.
For as long as the Rights are then redeemable, the Registrant may,
except with respect to the redemption price or date of expiration of the
Rights, amend the Rights in any manner, including an amendment to extend
the time period in which the Rights may be redeemed. At any time when the
Rights are not then redeemable, the Registrant may amend the Rights in any
manner that does not materially adversely affect the interests of holders
of the Rights as such. Amendments to the Rights Agreement from and after
the time that any Person becomes an Acquiring Person requires the approval
of a majority of the Continuing Directors (as provided in the Rights
Agreement).
Until a Right is exercised, the holder, as such, will have no rights
as a stockholder of the Registrant, including, without limitation, the
right to vote or to receive dividends.
-4-
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group who attempts to acquire the
Registrant on terms not approved by the Registrant's Board of Directors.
The Rights should not interfere with any merger or other business
combination approved by the Board since they may be redeemed by the
Registrant at $.001 per Right at any time until the close of business on
the tenth day (or such later date as described above) after a person or
group has obtained beneficial ownership of 15% or more of the voting
stock.
The form of Rights Agreement between the Registrant and Chemical
Mellon Shareholder Services, L.L.C., as rights agent, specifying the terms
of the Rights, which includes as Exhibit A the form of Summary of Rights
to Purchase Series A Junior Preferred Stock, as Exhibit B the form of
Right Certificate and as Exhibit C the form of Certificate of Designations
of the Registrant setting forth the terms of the Preferred Stock are
incorporated herein by reference to the Registrant's Current Report on
Form 8-K dated June 7, 1995. The foregoing description of the Rights is
qualified by reference to such exhibits.
Warrants to Purchase Common Stock
- ---------------------------------
On April 24, 1995 the Registrant issued 1,096,634 Warrants (the
"Warrants") to purchase the Registrant's Common Stock pursuant to the
provisions of a Warrant Agreement dated as of June 6, 1994 between the
Registrant and Chemical Mellon Shareholder Services, L.L.C. as Warrant
Agent. After adjustment to reflect the 1-for-2 reverse split of the
Registrant's Common Stock effective the close of business April 22, 1996,
each two Warrants entitle the holder thereof to purchase one share of
Common Stock at a price of $18.40 per share (the "Exercise Price").
Warrants may be exercised at any time after April 24, 1995 and before
5:00 p.m., New York City time on April 24, 1998. The holder of Warrants
may exercise them by surrendering them, together with payment of the
Exercise Price, at the office of the Warrant Agent. No holder of Warrants
will be entitled to receive any dividends paid on the Common Stock prior
to the exercise of the Warrants and, upon the exercise of some or all of
the Warrants, a Warrant holder will only be entitled to receive dividends
paid on the shares of Common Stock issuable to such holder prior to the
record date for such dividends.
The Warrants contain customary terms and include customary anti-
dilution provisions, including (i) adjustments for changes in capital
stock of the Registrant (i.e., if the Registrant: (1) pays a dividend or
makes a distribution on its Common Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares; (3) combines its outstanding shares of Common Stock into
a smaller number of shares; (4) makes a distribution on its Common Stock
in shares of its capital stock other than Common Stock; or (5) issues by
reclassification of its Common Stock any shares of its capital stock; (ii)
adjustments for any issuance by the Registrant of certain rights (i.e., If
the Registrant distributes any rights, options or warrants to all holders
of its Common Stock entitling them for a period expiring within 60 days
after the record date to purchase shares of Common Stock at a price per
share less than the current market price per share on that record date);
-5-
and (iii) adjustments for certain other distributions (i.e., if the
Registrant distributes to all holders of its Common Stock any of its
assets, debt securities, preferred stock, or any rights or warrants to
purchase debt securities, preferred stock, or other securities of the
Registrant).
No adjustment in the Exercise Price need be made unless the
adjustment would require an increase or decrease of at least 1% in the
Exercise Price. Any adjustments that are not made shall be carried
forward and taken into account in any subsequent adjustment.
If the Registrant consolidates or merges with or into, or transfers
or leases all or substantially all its assets to, any person, upon
consummation of such transaction the Warrants shall automatically become
exercisable for the kind and amount of securities, cash, or other assets
which the holder of a Warrant would have owned immediately after the
consolidation, merger, transfer or lease if the holder had exercised the
Warrant immediately before the effective date of the transaction. Whether
or not the Warrants are then exercisable, concurrently with the
consummation of such transaction, the corporation formed by or surviving
any such consolidation or merger if other than the Registrant, or the
person to which such sale or conveyance shall have been made, shall enter
into a supplemental Warrant Agreement so providing and further providing
for adjustments in accordance with the Warrant Agreement to the maximum
extent possible.
The form of Warrant Agreement between the Registrant and the Warrant
Agent is incorporated herein by reference to the Registrant's Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on
April 11, 1995, to which the Warrant Agreement constitutes Exhibit 10.
The foregoing description of the Warrants is qualified by reference to
such exhibit.
General
- -------
Shares of Preferred Stock may be issued from time to time at the
discretion of the Board of Directors without stockholder approval. The
Board of Directors is authorized to issue such shares in different series
and to fix all of the rights, preferences and qualifications of each such
series (including voting rights). Preferred Stock with voting rights
and/or conversion rights could dilute the voting power and/or equity of
the holders of the Common Stock. Also, the holders of Preferred Stock
would normally be entitled to receive a preference payment in the event of
any liquidation, dissolution or winding-up of the Registrant before any
payment is made to the holders of Common Stock.
Generally, Section 203 of the Delaware General Corporation Law
prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of
three years after the date of the transaction in which the person became
an interested stockholder, unless (i) prior to the date such stockholder
became an interested stockholder, the transaction was approved by the
board of directors of the corporation, (ii) upon consummation of the
transaction which resulted in the stockholder becoming an interested
-6-
stockholder, the interested stockholder owned at least 85% of the
outstanding voting stock, or (iii) on or after the date such stockholder
became an interested stockholder the business combination is approved by
the board and by the affirmative vote of holders of at least 66 2/3% of
the outstanding voting stock which is not owned by the interested
stockholder. A "business combination" includes mergers, certain asset
sales and certain other transactions involving the issuance of stock or
otherwise increasing the interested stockholder's proportionate ownership
of the corporation or the receipt by the interested stockholder of certain
financial benefits. An "interested stockholder" is a person who together
with affiliates and associates owns (or within three years, did own) 15%
or more of the corporation's voting stock.
The Common Stock and the Warrants are presently listed on the
American Stock Exchange.
Chemical Mellon Shareholder Services, L.L.C. is the transfer agent
and registrar for the Common Stock and for the Warrants.
-7-
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.
U.S. BIOSCIENCE, INC.
Date: May 3, 1996 By: /s/ Robert I. Kriebel
------------------------------------
Name: Robert I. Kriebel
Title: Senior Vice President,
Finance and Administration
-8-