SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
BENTLEY PHARMACEUTICALS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 59-1513162
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(State of Incorporation (IRS Employer
or Organization) Identification No.)
BENTLEY PARK, 2 HOLLAND WAY
EXETER, NEW HAMPSHIRE 03833
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box. [X] check the following box. [ ]
Securities Act registration statement file number to which this
form relates: _________________
(If Applicable)
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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Preferred Stock Purchase Rights The Pacific Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Effective as of December 21, 2004, the Board of Directors of Bentley
Pharmaceuticals, Inc. (the "Company") adopted a new Shareholder Rights Plan, as
set forth in a Renewed Rights Agreement (the "Renewed Rights Agreement") dated
as of December 21, 2004 between the Company and American Stock Transfer & Trust
Company, as Rights Agent. The Renewed Rights Agreement replaced the Company's
existing Rights Agreement which expired on December 21, 2004.
RIGHTS DIVIDEND
Pursuant to the Renewed Rights Agreement, the Board of Directors
declared a dividend of one Preferred Stock Purchase Right (a "Right") for each
outstanding share of the Company's Common Stock, par value $0.02 per share (the
"Common Stock"), payable to stockholders of record at the close of business on
December 21, 2004. Each Right, when exercisable, entitles the registered holder
to purchase from the Company one one-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $1.00 per share (the "Series A
Preferred Stock"), at a Purchase Price of $72.55 per one one-thousandth of a
share of Series A Preferred Stock, subject to adjustment.
DISTRIBUTION DATE
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights certificates will
be distributed. A Distribution Date will occur and the Rights will separate from
the Common Stock upon the earlier of: (i) 10 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 shares of Common Stock then outstanding (the
"Stock Acquisition Date"), or (ii) 10 business days following the commencement
of a tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of such outstanding shares of Common Stock
(unless such tender offer or exchange offer is an all cash offer for all
outstanding shares of Common Stock which a majority of the unaffiliated
directors who are not officers of the Company determine, after consultation with
one or more investment banking firms, to be at a price which is fair to all
stockholders and otherwise in the best interests of the Company and its
stockholders (a "Qualifying Offer")). The definition of "Acquiring Person"
excludes Michael McGovern, one of the Company's directors, and his affiliates
and associates, unless he, together with his affiliates and associates,
increases his beneficial ownership by 15% or more of the shares of Common Stock
then outstanding from the number of shares of Common Stock beneficially owned by
him on December 21, 2004. Under the Rights Agreement, for purposes of
calculating percentages of Common Stock outstanding, shares of Common Stock
outstanding shall include all shares of Common Stock deemed to be beneficially
owned (as defined in the Renewed Rights Agreement) by a person and its
affiliates and associates, even if not actually then outstanding.
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with
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and only with such Common Stock certificates, (ii) new Common Stock certificates
issued after December 21, 2004 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.
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 (i) with respect to certain
shares of Common Stock issued or sold pursuant to the exercise of stock options
or under any employee plan or arrangement, granted or awarded as of the
Distribution Date, or upon the exercise, conversion or exchange of certain
securities of the Company, or (ii) as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
EXPIRATION DATE
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 19, 2014, unless earlier redeemed or
exchanged by the Company as described below.
EXERCISE RIGHTS
In the event that an Acquiring Person becomes the beneficial owner of
15% or more of the then outstanding shares of Common Stock (except pursuant to a
Qualifying Offer), each holder of a Right will thereafter have the right to
receive, upon payment of the Purchase Price, shares of Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) having
a value (based on a formula set forth in the Renewed Rights Agreement) equal to
two times the Purchase Price of the Right. Notwithstanding any of the foregoing,
following the occurrence of the event set forth in this paragraph (the "Flip-in
Event"), all Rights that are, or (under certain circumstances specified in the
Renewed Rights Agreement) were, beneficially owned by an Acquiring Person (or by
certain related parties) shall be null and void. However, Rights are not
exercisable following the occurrence of the Flip-in Event until such time as the
Rights are no longer redeemable by the Company as set forth below.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation or in which it
is the surviving corporation but its Common Stock is changed or exchanged (other
than a merger consummated pursuant to a Qualifying Offer), or (ii) more than 50%
of the Company's assets or earning power is sold or transferred, each holder of
a Right (except Rights which previously have been voided as set forth above)
shall, after the expiration of the redemption period referred to below, have the
right to receive, upon payment of the Purchase Price, common stock of the
acquiring company having a value equal to two times the Purchase Price. The
events set forth in this paragraph and the Flip-in Event described in the
previous paragraph are referred to as the "Triggering Events."
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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 shares of Common Stock (or other consideration) of the Company
or for shares of common stock of the acquiring company as set forth above, or
are redeemed as provided above.
ADJUSTMENT
The Purchase Price payable, and the number of one one-thousandths of a
share of Series A Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Series A Preferred Stock, (ii) if holders of the
Series A Preferred Stock are granted certain rights or warrants to subscribe for
Series A Preferred Stock or convertible securities at less than the current
market price of the Series A Preferred Stock, or (iii) upon the distribution to
holders of the Series A Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends out of the earnings or retained
earnings of the Company) or of subscription rights or warrants (other than those
referred to above).
With certain exceptions, no anti-dilution adjustment in the Purchase
Price will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. No fractional shares of Series A Preferred Stock (other than
fractions of one one-thousandth of a share, or integral multiples thereof) will
be issued and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Series A Preferred Stock on the last trading date prior to
the date of exercise.
REDEMPTION
At any time until ten (10) days following the Stock Acquisition Date
(as such period may be extended or shortened by the Board of Directors) the
Company may redeem the Rights in whole, but not in part, at a price of $0.001
per Right (payable in cash, shares of 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 $0.001 redemption
price.
EXCHANGE
At any time after a person becomes an Acquiring Person, the Board of
Directors may, at its option, exchange all or any part of the then outstanding
and exercisable Rights for shares of Common Stock at an exchange ratio specified
in the Renewed Rights Agreement.
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AMENDMENT
Other than certain provisions relating to the principal economic terms
of the Rights, any of the provisions of the Renewed Rights Agreement may be
amended by the Board of Directors of the Company prior to the Distribution Date.
From and 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 (other than an Acquiring
Person or an affiliate or associate thereof), or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no amendment shall be
made at such time as the Rights are not redeemable.
ANTI-TAKEOVER EFFECTS
The Rights have certain anti-takeover effects. Exercise of the Rights
will cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by the Company's Board of Directors. The
existence of Rights, however, should not affect an offer at a price which is
fair to all stockholders and otherwise in the best interests of the Company and
its stockholders as determined by the Board of Directors. The Rights should not
interfere with any merger or other business combination approved by the Board of
Directors since the Board of Directors may, at its option, at any time until ten
days following the Stock Acquisition Date (as such period may be extended or
shortened by the Board of Directors) redeem all but not less than all of the
then outstanding Rights at the $0.001 redemption price.
MISCELLANEOUS
The Renewed Rights Agreement, dated as of December 21, 2004, between
the Company and American Stock Transfer & Trust Company, as Rights Agent,
specifying the term of the Rights is included as Exhibit 1 to this filing and is
incorporated herein by reference. The foregoing description of the Rights is
qualified in its entirety by reference to such exhibit.
Item 2. EXHIBITS.
1. Renewed Rights Agreement dated as of December 21, 2004 between
Bentley Pharmaceuticals, Inc. and American Stock Transfer &
Trust Company, as Rights Agent, including the form of Rights
certificate as Exhibit B and the Summary of Rights to Purchase
Series A Junior Participating Preferred Stock as Exhibit C.
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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.
BENTLEY PHARMACEUTICALS, INC.
Date: February 10, 2005 By: /s/ Michael D. Price
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Michael D. Price
Vice President and Chief Financial Officer
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