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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest event
reported):
JUNE 7, 2001
VERSICOR INC.
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(Exact Name of Registrant As Specified in Charter)
Delaware 000-31145 04-3278032
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
34790 Ardentech Court, Fremont, California 94555
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(Address of Principal Executive Offices) (Zip Code)
(510) 739-3000
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(Registrant's telephone number, including area code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report.)
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ITEM 5. OTHER EVENTS.
ADOPTION OF SHAREHOLDER RIGHTS PLAN
On June 7, 2001, the Board of Directors of Versicor Inc. (the
"Company") declared a dividend distribution of one Right for each outstanding
share of Company Common Stock to stockholders of record at the Close of Business
on July 9, 2001 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $0.01 per share (the "Preferred
Stock"), at a Purchase Price of $98.00, subject to adjustment. The description
and terms of the Rights are set forth in a Stockholder Rights Agreement (the
"Rights Agreement") between the Company and American Stock Transfer & Trust
Company, as Rights Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. Subject to certain exceptions specified in the
Rights Agreement, the Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 business days 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 shares of Common Stock
(the "Stock Acquisition Date"), other than as a result of repurchases of stock
by the Company or certain inadvertent actions by institutional or certain other
stockholders, or (ii) 10 business days (or such later date as the Board shall
determine) following the commencement of a tender offer or exchange offer that
would result in a person or group becoming an Acquiring Person. Until the
Distribution Date, (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by reference, and
(iii) the surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. Pursuant to the Rights Agreement,
the Company reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise of Rights, a number
of Rights be exercised so that only whole shares of Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution Date and
will expire at 5:00 P.M. (Pacific Time) on July 9, 2011, unless earlier redeemed
or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock as of the
Close of Business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights.
Except as otherwise determined by the Board of Directors, only
shares of Common Stock issued prior to the Distribution Date will be issued with
Rights.
In the event that a Person becomes an Acquiring Person, except
pursuant to an offer for all outstanding shares of Common Stock which the
independent directors determine to be at a price which is fair and not
inadequate and to otherwise be in the best interests of the
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Company and its stockholders, after receiving advice from one or more investment
banking firms (a "Qualified Offer"), each holder of a Right will thereafter have
the right to receive, upon exercise, Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a value equal to two
times the exercise price of the Right. The Exercise Price is the Purchase Price
times the number of shares of Common Stock associated with each Right.
Notwithstanding any of the foregoing, following the occurrence of the event set
forth in this paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person or an affiliate or associate thereof will be null and void. However,
Rights are not exercisable following the occurrence of the event set forth above
until such time as the Rights are no longer redeemable by the Company as set
forth below.
For example, at an exercise price of $98.00 per Right, each
Right not owned by an Acquiring Person (or by certain related parties) following
an event set forth in the preceding paragraph would entitle its holder to
purchase $196.00 worth of Common Stock (or other consideration, as noted above)
for $98.00. Assuming that the Common Stock had a per share value of $14 at such
time, the holder of each valid Right would be entitled to purchase 14 shares of
Common Stock for $98.00.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company engages in a merger or other business combination
transaction in which the Company is not the surviving corporation (other than
with an entity which acquired the shares pursuant to a Qualified Offer), (ii)
the Company engages in a merger or other business combination transaction in
which the Company is the surviving corporation and the Common Stock of the
Company is changed or exchanged, or (iii) 50% or more of the Company's assets or
cash flow is sold or transferred, each holder of a Right (except Rights which
have previously been voided as set forth above) shall thereafter have the right
to receive, upon exercise, common stock of the acquiring company (or in certain
circumstances, its parent) having a value equal to two times the exercise price
of the Right. The events set forth in this paragraph and in the second preceding
paragraph are referred to as the "Triggering Events."
At any time after a person becomes an Acquiring Person and
prior to the acquisition by such person or group of 50% or more of the
outstanding Common Stock, the Board 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 share of Common Stock or one one-hundredth of a share
of Preferred Stock (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).
At any time until 10 business days following the Stock
Acquisition Date, the Company may redeem the Rights in whole, but not in part,
at a price of $0.01 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors). Immediately upon
the action of the Board of Directors ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $0.01 redemption price.
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
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dividends. While the distribution of the Rights will not be taxable to
stockholders or to the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company or in the event of the redemption of the
Rights as set forth above.
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 make changes which do not adversely
affect the interests of holders of Rights, or to shorten or lengthen any time
period under the Rights Agreement. The foregoing notwithstanding, no amendment
may be made at such time as the Rights are not redeemable.
A copy of the Rights Agreement is available free of charge
from the Rights Agent. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) EXHIBITS
The following exhibits are part of this current report on Form
8-K and are numbered in accordance with Item 601 of Regulation S-K.
EXHIBIT NO. DESCRIPTION
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3.1 Certificate of Amendment and Restatement of the
Certificate of Designation relating to the Series A Junior
Participating Preferred Stock, as filed with the Secretary
of State of the State of Delaware on July 10, 2001.
4.1 Rights Agreement between the Company and American Stock
Transfer & Trust Company, dated June 28, 2001, as Rights
Agent.
4.2 Form of Rights Certificate (included as Exhibit B to the
Rights Agreement filed as EXHIBIT 4.1).
99.1 Letter from the Company to its stockholders, dated July 6,
2001 announcing the adoption of the shareholder rights
plan.
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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 thereunto duly authorized.
VERSICOR INC.
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(Registrant)
Date: July 10, 2001 By: /s/ GEORGE F. HORNER III
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George F. Horner III
President and Chief Executive Officer
EXHIBIT INDEX
Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit
index immediately precedes the exhibits.
EXHIBIT NO. DESCRIPTION
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3.1 Certificate of Amendment and Restatement of the
Certificate of Designation relating to the Series A Junior
Participating Preferred Stock, as filed with the Secretary
of State of the State of Delaware on July 10, 2001.
4.1 Rights Agreement between the Company and American Stock
Transfer & Trust Company, dated June 28, 2001, as Rights
Agent.
4.2 Form of Rights Certificate (included as Exhibit B to the
Rights Agreement filed as EXHIBIT 4.1).
99.1 Letter from the Company to its stockholders, dated July 6,
2001 announcing the adoption of the shareholder rights
plan.
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