UNITED STATES
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
Date of Report (Date of earliest event reported) June 8, 2005
Eyetech Pharmaceuticals, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 000-50516 13-4104684
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
3 Times Square, 12th Floor
New York, NY 10036
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(Address of Principal Executive Offices) (Zip Code)
(212) 824-3100
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(Registrant's telephone number (including area code)
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(Former name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
On June 8, 2005, the Board of Directors of Eyetech Pharmaceuticals, Inc.
(the "Company") authorized and declared a dividend of one right ("Right") for
each outstanding share of its Common Stock, par value $.01 per share (the
"Company Common Stock"), to stockholders of record at the close of business on
June 21, 2005 (the "Record Date"), and authorized the issuance of one Right for
each share of Company Common Stock issued by the Company (except as otherwise
provided in the Rights Agreement, as defined below) between the Record Date and
the Distribution Date (as defined below). Each Right entitles the registered
holder, subject to the terms of the Rights Agreement (as defined below), to
purchase from the Company one one-hundredth of a share (a "Unit") of Series A
Preferred Stock, par value $.01 per share (the "Preferred Stock"), at a purchase
price of $150.00 per Unit, subject to adjustment. The purchase price is payable
in cash or by certified or bank check or money order payable to the order of the
Company. The Company filed the Certificate of Designation of the Preferred Stock
with the Delaware Secretary of State on June 13, 2005. The description and terms
of the Rights are set forth in a Rights Agreement between the Company and
American Stock Transfer & Trust Company, as Rights Agent, dated as of June 10,
2005, as amended from time to time (the "Rights Agreement").
The material terms of the Rights Agreement and the Preferred Stock are
summarized below. This summary description of the Rights and the Preferred Stock
does not purport to be complete and is qualified in its entirety by reference to
all of the provisions of the Rights Agreement and the Certificate of
Designation, including the definitions therein of certain terms, which Rights
Agreement and Certificate of Designation are filed as exhibits to this report.
The Rights Agreement
Certificates; Distribution Date. Initially, the Rights will attach to all
certificates representing shares of outstanding Company Common Stock, and no
separate Rights Certificates will be distributed. Subject to the provisions of
the Rights Agreement, the Rights will separate from the Company Common Stock and
the "Distribution Date" will occur upon the earlier of (i) ten business days
following a public announcement (the date of such announcement being the "Stock
Acquisition Date") that a person or group of affiliated or associated persons
(an "Acquiring Person") has acquired or otherwise obtained beneficial ownership
of 15% or more of the then-outstanding shares of Company Common Stock, and (ii)
ten 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 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 Company Common Stock certificates and will
be transferred with and only with such Company Common Stock certificates, (ii)
new Company Common Stock certificates issued after the Record Date (also
including shares distributed from Treasury) will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates representing outstanding Company Common Stock will
also constitute the transfer of the Rights associated with the Company Common
Stock represented by such certificates.
An "Acquiring Person" does not include certain persons specified in the
Rights Agreement.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on June 20, 2015 unless earlier redeemed or exchanged
by the Company as described below. Under certain circumstances the
exercisability of the Rights may be suspended. In no event, however, will the
Rights be exercisable prior to the expiration of the period in which the Rights
may be redeemed as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Company Common Stock as of the close of
business on the Distribution Date (and to each initial holder of certain shares
of Company Common Stock issued after the Distribution Date) and, thereafter, the
separate Rights Certificates alone will represent the Rights.
Flip-In. If a person becomes an Acquiring Person, then each holder of a
Right will thereafter have the right to receive, upon exercise, Units of
Preferred Stock or, at the option of the Company, shares of Company 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 multiplied by the number of Units of
Preferred Stock issuable upon exercise of a Right prior to the event described
in this paragraph. 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 any affiliate or associate thereof
(or certain transferees of any thereof) will be null and void.
Flip-Over. If, at any time following the date that any person becomes an
Acquiring Person, (i) the Company is acquired in a merger or other business
combination transaction and the Company is not the surviving corporation, (ii)
any person merges with the Company and all or part of the Company Common Stock
is converted or exchanged for securities, cash or property of the Company or any
other person or (iii) 50% or more of the Company's assets or earning power is
sold or transferred, each holder of a Right (except Rights that previously have
been voided as described above) shall thereafter have the right to receive, upon
exercise, common stock of the acquiring company having a value equal to two
times the exercise price of the Right.
Redemption. At any time until ten business days following the Stock
Acquisition Date, the Board of Directors may redeem the Rights in whole, but not
in part, at a price of $.001 per Right (subject to adjustment in certain events)
payable, at the election of the Board of Directors, in cash, shares of Company
Common Stock or other consideration considered appropriate by the Board of
Directors. Immediately upon the action of the Board of Directors ordering the
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the redemption price.
Exchange. The Company may, at any time after there is an Acquiring Person,
until the time specified in the Rights Agreement, exchange all or part of the
then-outstanding and exercisable Rights (other than Rights that shall have
become null and void) for Units of Preferred
Stock or shares of Company Common Stock pursuant to a one-for-one exchange
ratio, subject to adjustment.
No Stockholder Rights; Taxation. 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. 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 Units of Preferred
Stock (or other consideration) or for common stock of the acquiring company or
in the event of the redemption of Rights as set forth above.
Amendment. Any of the provisions of the Rights Agreement may be amended
without the approval of the holders of the Rights or Company Common Stock at any
time prior to the Distribution Date. After such date, the provisions of the
Rights Agreement may be amended in order to cure any ambiguity, defect or
inconsistency, to shorten or lengthen any time period under the Rights
Agreement, or to make changes that do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring Person); provided,
that no such amendment shall be made to lengthen (i) the time period governing
redemption at such time as the Rights are not redeemable or (ii) any other time
period unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights.
Description of Preferred Stock
The Units of Preferred Stock that may be acquired upon exercise of the
Rights will be nonredeemable and subordinate to any other shares of preferred
stock that may be issued by the Company.
If, as and when declared by the Board of Directors, each Unit of Preferred
Stock will have a minimum dividend equal to the per share dividend declared on
the Company Common Stock.
In the event of liquidation, the holder of a Unit of Preferred Stock will
receive a preferred liquidation payment equal to the greater of $0.01 per Unit
and the per share amount paid in respect of a share of the Company Common Stock.
Each Unit of Preferred Stock will have one vote, voting together with the
Company Common Stock.
In the event of any merger, consolidation or other transaction in which
shares of Company Common Stock are exchanged, each Unit of Preferred Stock will
be entitled to receive the per share amount paid in respect of each share of
Company Common Stock.
The rights of holders of the Preferred Stock with respect to dividends,
liquidation and voting, and in the event of mergers and consolidations, are
protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the economic value of one Unit of Preferred Stock that may be
acquired upon the exercise of each Right should approximate the economic value
of one share of Company Common Stock.
ITEM 7.01. REGULATION FD DISCLOSURE.
On June 9, 2005, the Company issued the press release with respect to the
Rights Agreement that is furnished as Exhibit 99.1 to this Current Report on
Form 8-K and incorporated herein by reference.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
EXHIBIT NO. DESCRIPTION
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4.1 Rights Agreement dated as of June 10, 2005 between the
registrant and American Stock Transfer & Trust Company, as
Rights Agent, including the Form of Rights Certificate
attached thereto as Exhibit A, incorporated by reference to
Exhibit 1 to the registrant's Form 8-A dated June 13, 2005
4.2 Certificate of Designation of the Series A Preferred Stock of
the registrant, incorporated by reference to Exhibit 2 to the
registrant's Form 8-A dated June 13, 2005
99.1 Press release dated June 9, 2005 with respect to authorization
of Rights Agreement
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.
Date: June 13, 2005 EYETECH PHARMACEUTICALS, INC.
By: /s/ Paul G. Chaney
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Name: Paul G. Chaney
Title: Chief Operating Officer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Rights Agreement dated as of June 10, 2005 between the
registrant and American Stock Transfer & Trust Company, as
Rights Agent, including the Form of Rights Certificate
attached thereto as Exhibit A, incorporated by reference to
Exhibit 1 to the registrant's Form 8-A dated June 13, 2005
4.2 Certificate of Designation of the Series A Preferred Stock of
the registrant, incorporated by reference to Exhibit 2 to the
registrant's Form 8-A dated June 13, 2005
99.1 Press release dated June 9, 2005 with respect to authorization
of Rights Agreement