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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
POST-EFFECTIVE AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
La Jolla Pharmaceutical Company
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(Exact Name of Registrant as Specified in Charter)
Delaware 33-0361285
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(State of Incorporation or Organization) (IRS Employer Identification no.)
6455 Nancy Ridge Drive, San Diego, California 92121
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [X]
Securities Act registration statement file number to which
this form relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
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(Title of Class)
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The undersigned registrant hereby amends the following items, exhibits
or other portions of its Application for Registration on Form 8-A filed December
4, 1998, as follows:
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The Board of Directors of La Jolla Pharmaceutical Company, a Delaware
corporation (the "CORPORATION") adopted an amendment (the "AMENDMENT"),
effective as of July 21, 2000, to the Company's existing Rights Agreement (the
"RIGHTS AGREEMENT") dated December 3, 1998, by and between the Corporation and
American Stock Transfer & Trust Company, a New York corporation, as Rights
Agent.
The purpose of the amendment was to eliminate the concept and powers of
the "Continuing Directors" in response to a clarification of Delaware law by the
Delaware Supreme Court, and to amend the definition of "Acquiring Person" to
permit State of Wisconsin Investment Board to invest up to a level of just under
20% beneficial ownership without triggering the Rights Agreement, as amended.
Pursuant to the terms of the Rights Agreement, on November 19, 1998
(the "RIGHTS DIVIDEND DECLARATION DATE"), the Board of Directors of La Jolla
Pharmaceutical Company (the "CORPORATION") declared a dividend of one right (a
"RIGHT") to purchase fractions of shares of its Series A Junior Participating
Preferred Stock, having the rights, preferences, privileges and restrictions
described in Paragraph K below (the "PREFERRED STOCK"), and, under certain
circumstances, other securities, for each outstanding share of the Corporation's
common stock, par value $.01 per share (the "COMMON STOCK"), to be distributed
to stockholders of record at the close of business on December 18, 1998 (the
"RECORD DATE").
The description and terms of the Rights are set forth in the Rights
Agreement, as amended. However, the following is a brief description of the
Rights. It is intended to provide a general description only and is qualified in
its entirety by reference to the Rights Agreement, Exhibit 99.1 hereto, and the
Amendment, Exhibit 99.2 hereto.
A. ISSUANCE OF THE RIGHTS
Each share of Common Stock outstanding at the close of business on the
Record Date will receive one Right. In addition, prior to the earliest of the
Distribution Date, a Section 13 Event or the Expiration Date (as each is
hereinafter defined), one additional Right (as such number may be adjusted
pursuant to the provisions of the Rights Agreement) shall be issued with each
share of Common Stock issued after the Record Date. Following the Distribution
Date and prior to the expiration or redemption of the Rights, the Corporation
will issue one Right (as such number may be adjusted pursuant to the provisions
of the Rights Agreement) for each share of Common Stock issued pursuant to the
exercise of stock options or under employee plans or upon the exercise,
conversion or exchange of securities issued by the Corporation prior to the
Distribution Date. A "SECTION 13 EVENT" shall mean any event in which (i) the
Corporation merges or consolidates with another and the Corporation is not the
surviving corporation; (ii) the Corporation merges or consolidates with another,
the Corporation is the surviving corporation, and all or part of the
Corporation's common stock is exchanged for other securities, cash or property;
or (iii) the Corporation sells or transfers more than 50% of its assets or
earning power.
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The "EXPIRATION DATE" shall mean the earliest of (i) December 2, 2008; (ii) the
date of redemption of the Rights; (iii) the date the Board orders an exchange of
Rights; or (iv) the date of consummation of a tender offer approved as fair to
and in the best interests of the Corporation and its stockholders and adequately
priced with each stockholder receiving the same consideration per share in the
same manner.
B. COMMON STOCK CERTIFICATES REPRESENT THE RIGHTS PRIOR TO THE
DISTRIBUTION DATE
Prior to the Distribution Date (as hereinafter defined), no separate
Rights certificates will be issued. Instead, the Rights will be evidenced by the
certificates for the Common Stock to which they are attached and will be
transferred with and only with such Common Stock certificates. 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. New Common Stock certificates issued after the Record Date will
contain a legend incorporating the Rights Agreement by reference.
C. DISTRIBUTION DATE; ISSUANCE OF RIGHTS CERTIFICATES
The Rights will separate from the Common Stock and become exercisable
and a Distribution Date will occur (the "DISTRIBUTION DATE") upon the earlier of
the close of business on the tenth day after (i) public announcement that a
person or group of affiliated or associated persons has acquired beneficial
ownership of 15% or more (or, in the case of State of Wisconsin Investment
Board, one of the Corporation's stockholders, 20% or more) of the outstanding
shares of Common Stock (an "ACQUIRING PERSON") or such earlier date as a
majority of the directors shall become aware of the existence of an Acquiring
Person (the "STOCK ACQUISITION DATE"), or (ii) the commencement of a tender or
exchange offer by any person or group, if upon consummation thereof, such person
or group of affiliated or associated persons would be the beneficial owner of
15% or more (or, in the case of State of Wisconsin Investment Board, 20% or
more) of the shares of Common Stock then outstanding. Notwithstanding the
foregoing, however, the trigger percentage expressed in clauses (i) and (ii)
will not be triggered with respect to any stockholder of the Corporation
beneficially owning as of the Rights Dividend Declaration Date) (together with
such stockholder's affiliated and associated persons) 15% or more of the shares
of Common Stock outstanding as of December 3, 1998 (an "ORIGINAL 15%
STOCKHOLDER") unless and until such Original 15% Stockholder (together with such
stockholder's affiliated and associated persons) shall, after the Rights
Dividends Declaration Date, acquire additional shares of Common Stock without
the prior approval of the Board of Directors of the Corporation and if,
immediately following and giving effect to such acquisition, such Original 15%
Stockholder (together with such stockholder's affiliated and associated
persons), is the beneficial owner of 15% or more of the shares of Common Stock
then outstanding. 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.
D. EXERCISE OF THE RIGHTS
1. RIGHTS INITIALLY NOT EXERCISABLE. Prior to the Distribution Date,
the Rights are not exercisable.
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2. EXERCISE OF THE RIGHTS TO PURCHASE PREFERRED STOCK OF THE
CORPORATION. At any time after the Distribution Date but prior to the earlier of
the expiration, exchange or redemption of the Rights, each Right may be
exercised at the stated purchase price of $30 (subject to adjustment, the
"EXERCISE PRICE") for one one-thousandth of a share of the Preferred Stock;
provided, however, that upon the occurrence of any of the events described below
the Rights may no longer be exercised for the Preferred Stock and may only be
exercised for certain other securities described below.
3. EXERCISE OF THE RIGHTS TO PURCHASE COMMON STOCK OF THE CORPORATION.
In the event that at any time following the Rights Dividend Declaration Date,
either (a) a person (other than an Original 15% Stockholder), alone or with
affiliates, becomes the beneficial owner of 15% or more (or, in the case of
State of Wisconsin Investment Board, 20% or more) of the then outstanding shares
of the Corporation's Common Stock or (b) an Original 15% Stockholder, alone or
with such stockholder's affiliated and associated persons, acquires additional
shares of Common Stock without the prior approval of the Board of Directors of
the Corporation and if, immediately following and giving effect to such
acquisition, such Original 15% Stockholder is the beneficial owner of 15% or
more of the then outstanding shares of Common Stock (in either case except
pursuant to an offer for all outstanding shares of Common Stock which the Board
of Directors determines to be fair to and otherwise in the best interests of the
Corporation and its stockholders (a "PERMITTED OFFER")), then each holder of a
Right will thereafter have the right to exercise the Right for Common Stock (or,
in certain circumstances, cash, property or other securities of the Corporation)
having a value equal to two times the Exercise Price of the Right. If the
Corporation does not have sufficient Common Shares available for all Rights to
be exercised, the Corporation may substitute for all or any portion of the
Common Stock that would be issuable upon exercise of the Rights, cash, assets,
or other securities having the same aggregate value as such Common Stock. The
Rights are exercisable as described in this paragraph only after the
Corporation's right of redemption (as described below) has expired.
Notwithstanding any of the foregoing, following the occurrence of the event set
forth in this paragraph (a "SECTION 11(a)(II) EVENT"), all Rights that are, or
under certain circumstances specified in the Rights Agreement were, beneficially
owned by an Acquiring Person will be null and void.
4. EXERCISE OF THE RIGHTS TO PURCHASE COMMON STOCK OF AN ACQUIRING
CORPORATION. In the event that, at any time following the Stock Acquisition
Date, (i) the Corporation is merged or consolidated with another company in a
business combination transaction in which the Corporation is not the surviving
corporation or in which the Corporation is the surviving corporation and all or
part of the Common Stock of the Corporation is exchanged for stock of any other
person, cash or any other property (other than a merger which follows a
Permitted Offer), or (ii) more than 50% of the assets or earning power of the
Corporation and its subsidiaries (taken as a whole) is sold or transferred, then
each holder of a Right (except Rights which previously have been voided as set
forth above) shall thereafter have the right to exercise the Right for common
stock of the acquiring company having a value equal to two times the Exercise
Price of the Right. (An event described in this paragraph is a "SECTION 13
EVENT.")
5. ADJUSTMENT OF NUMBER OF RIGHTS, PURCHASE PRICE AND NUMBER OF UNITS
OF PREFERRED STOCK. The Exercise Price payable and/or the number of shares of
Preferred Stock or other securities or property issuable upon exercise of the
Rights are subject to proportionate adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
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subdivision, combination or reclassification of, the Preferred Stock, (ii) in
the event holders of the Preferred Stock are granted certain rights or warrants
to subscribe for Preferred Stock or convertible securities at less than the
current market price of the Preferred Stock, or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or assets (excluding
certain cash dividends) or of subscription rights or warrants (other than those
referred to above). If at any time after the Rights Dividend Declaration Date
and prior to the Distribution Date the Corporation declares a stock dividend on,
subdivides or combines the outstanding shares of Common Stock, the number of
Rights associated with each share of Common Stock shall be proportionately
adjusted.
E. FRACTIONAL RIGHTS AND FRACTIONAL SHARES
The Corporation is generally not required to issue fractional Rights,
fractions of shares of Preferred Stock (other than fractions which are integral
multiples of one one-thousandth of a share), or fractions of shares of Common
Stock and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Rights, Preferred Stock, or Common Stock, respectively.
F. REDEMPTION OF THE RIGHTS
In general, the Corporation may redeem all (but not less than all) of
the Rights at a price of $.001 per Right (subject to adjustment to reflect stock
splits, stock dividends, or similar transactions), at any time until the earlier
of the tenth day following the Stock Acquisition Date or the close of business
on December 2, 2008. This redemption period may be extended by the Board of
Directors by amending the Rights Agreement as described in Paragraph H below
prior to the time when the Rights become nonredeemable. The redemption price may
be paid in cash, shares of Common Stock, or any other consideration the Board of
Directors deems appropriate. 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 $.001 redemption
price.
G. EXCHANGE OF THE RIGHTS
At any time after a Section 11(a)(ii) Event or a Section 13 Event and
before any person or group acquires 50% or more of the outstanding Common Stock,
the Board of Directors of the Corporation may cause the Corporation to exchange
some or all of the outstanding and exercisable Rights for Common Stock at a
one-to-one exchange ratio (appropriately adjusted to reflect stock splits,
dividends or similar transactions). Rights may not be exercised after the Board
orders their exchange. If there is not sufficient authorized unissued Common
Stock to fund an exchange, the Board may fund the exchange through other
consideration, including issuance of debt and/or equity. In addition, at any
time before any person or group becomes in Acquiring Person, the Board may
exchange some or all of the Rights for rights of substantially equivalent value.
H. AMENDMENTS
Other than those provisions relating to the redemption price of the
Rights, any of the provisions of the Rights Agreement may be supplemented or
amended by the Board of Directors of the Corporation prior to the Distribution
Date, without approval of the Rights holders, whether
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or not a supplement or amendment is adverse to the Rights holders. From and
after the Distribution Date, any provisions of the Rights Agreement (other than
those provisions relating to the redemption price of the Rights) may be amended
by the Board of Directors in order to (i) cure any ambiguous, defective or
inconsistent provision, (ii) shorten or lengthen any time period hereunder, or
(iii) otherwise change a provision which the Board of Directors may deem
necessary or desirable and which does not materially and adversely affect the
interests of holders of Rights (other than any Acquiring Person); provided, the
Rights Agreement may not be amended to (A) make the Rights again redeemable
after the Rights have ceased to be redeemable, or (B) change any other time
period unless such change is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to the holders of the Rights
(other than any Acquiring Person).
I. EXPIRATION
The Rights will expire upon the earliest to occur of the close of
business on December 2, 2008, the exchange or redemption of the Rights by the
Corporation, or the consummation of a Permitted Offer transaction followed by a
merger or consolidation of the Corporation with another company in which all
stockholders of the Corporation receive the same consideration and terms as in
the Permitted Offer.
J. NO STOCKHOLDER RIGHTS PRIOR TO EXERCISE
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Corporation, including, without limitation, the
right to vote or to receive dividends.
K. TERMS OF THE PREFERRED STOCK
The Corporation has initially reserved 75,000 shares of Preferred Stock
for issuance upon exercise of the Rights, such number to be subject to
adjustment from time to time in accordance with the Rights Agreement. The
Preferred Stock will be nonredeemable. The dividend, liquidation and voting
rights, and the rights upon consolidation or merger of the Preferred Stock are
designed so that the value of the one one-thousandth interest in a share of
Preferred Stock purchasable with each Right will approximate the value of one
share of Common Stock. Each whole share of Preferred Stock will be entitled to
receive a quarterly preferential dividend equal to the greater of $.25 or 1,000
times any dividend declared on the Common Stock. In the event of liquidation,
the holders of the Preferred Stock will be entitled to receive a preferential
liquidation payment of $1,000 per share plus the amount of accrued unpaid
dividends thereon, the holders of the Common Stock will then be entitled to
receive a liquidation payment equal to $1.00 per share (subject to proportionate
adjustment to reflect stock splits, dividends or combinations), and the holders
of the Preferred Stock and Common Stock will then share ratably in all assets
remaining available for distribution to stockholders. Each share of Preferred
Stock will have 1,000 votes (subject to proportionate adjustment to reflect
stock splits, dividends and combinations), and will generally vote together with
the Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or other property, each share of Preferred
Stock will be entitled to receive 1,000 times the amount received per share of
Common Stock (subject to proportionate adjustment to reflect stock splits,
dividends and combinations).
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L. ANTI-TAKEOVER EFFECTS
The Rights are designed to protect and maximize the value of
stockholders' interests in the Corporation in the event of an unsolicited
takeover attempt in a manner or on terms not approved by the Board of Directors.
Takeover attempts frequently include coercive tactics to deprive the Board of
Directors and stockholders of any real opportunity to determine the destiny of
the Corporation. The Rights have been declared by the Board in order to deter
such tactics, including a gradual accumulation in the open market of a 15% or
greater position (or in the case of State of Wisconsin Investment Board, a 20%
or greater position), followed by a merger or a partial or two-tier tender offer
that does not treat all stockholders equally. These tactics can unfairly
pressure stockholders, squeeze them out of their investment without giving them
any real choice and deprive them of the full value of their shares.
The Rights may be redeemed by the Corporation as described in Paragraph
F, and accordingly, the Rights should not interfere with any merger or business
combination approved by the Board of Directors.
Issuance of the Rights does not weaken the Corporation or interfere
with its business plans. The issuance of the Rights themselves has no dilutive
effect, will not affect reported earnings per share, should not be taxable to
the Corporation or to its stockholders, and will not change the way in which the
Corporation's shares are presently traded. The Corporation's Board of Directors
believes that the Rights represent a sound and reasonable means of addressing
the complex issues of corporate policy created by the current takeover
environment.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Corporation deemed undesirable by the Board
of Directors. The Rights may cause substantial dilution to a person or group
that attempts to acquire the Corporation on terms or in a manner not approved by
the Corporation's Board of Directors, except pursuant to an offer conditioned
upon the negation, purchase or redemption of the Rights.
ITEM 2. EXHIBITS.
99.1 Rights Agreement dated as of December 3, 1998 between La Jolla
Pharmaceutical Company and American Stock Transfer & Trust
Company, as Rights Agent, which includes as Exhibit B thereto
the Form of Rights Certificate to be distributed to holders of
Rights after the Distribution Date (as that term is defined in
the Rights Agreement) (incorporated by reference to Exhibit
99.1 to the Form 8-A (File No. 000-24274) filed by La Jolla
Pharmaceutical Company on December 4, 1998).
99.2 Amendment to the Rights Agreement, effective as of July 21,
2000 (incorporated by reference to Exhibit 99.1 to the Form
8-K filed by La Jolla Pharmaceutical Company on January 26,
2001).
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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, thereto duly authorized.
La Jolla Pharmaceutical Company
Date: January 25, 2001 By: /s/ Steven B. Engle
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Steven B. Engle
Chief Executive Officer
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EXHIBIT INDEX
Exhibit
Number Description
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99.1 Rights Agreement dated as of December 3, 1998 between La Jolla
Pharmaceutical Company and American Stock Transfer & Trust
Company, as Rights Agent, which includes as Exhibit B thereto
the Form of Rights Certificate to be distributed to holders of
Rights after the Distribution Date (as that term is defined in
the Rights Agreement) (incorporated by reference to Exhibit
99.1 to the Form 8-A (File No. 000-24274) filed by La Jolla
Pharmaceutical Company on December 4, 1998).
99.2 Amendment to the Rights Agreement, effective as of July 21,
2000 (incorporated by reference to Exhibit 99.1 to the Form
8-K filed by La Jolla Pharmaceutical Company on January 26,
2001).