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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 8-K
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Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 17, 2004
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BIOENVISION, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation)
000-24875 13-4025857
(Commission File No.) (IRS Employer Identification No.)
345 Park Avenue, 41st Floor
New York, New York 10154
(Address of principal executive offices and zip code)
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Registrant's telephone number, including area code: (212) 750-6700
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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:
[ ] 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))
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Item 1.01 Entry into a Material Definitive Agreement
In connection with the adoption of a Preferred Share Purchase Rights
Plan, Bioenvision, Inc. (the "Company") entered into the Rights Agreement, dated
as of November 17, 2004, between the Company and American Stock Transfer & Trust
Company, as rights agent (the "Rights Agreement"). The Preferred Share Purchase
Rights Plan is described under "Item 8.01 Other Events" below and such
information is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change of Fiscal
Year
On November 17, 2004, the Company filed a Certificate of Designation of
Series A Junior Participating Preferred Stock with the Secretary of State of the
State of Delaware. Pursuant thereto, the Company authorized 500,000 of its
preferred stock to be designated Series A Junior Participating Preferred Stock,
as further described in Item 8.01. As of the date of this Form 8-K Current
Report none of the shares of Series A Junior Participating Preferred Stock have
been issued.
Item 8.01 Other Events.
On November 17, 2004, the Board of Directors of the Company approved the
adoption of a Preferred Share Purchase Rights Plan (the "Plan"). The terms of
the Plan provide for a dividend distribution of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $0.001
per share (the "Common Shares"), of the Company. The dividend is payable on
November 29, 2004 (the "Record Date") to the stockholders of record on that
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 $0.001 per share (the "Preferred Shares"), at a price of $70.00 per one
one-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. Each one one-hundredth of a Preferred Share has designations and
powers, preferences and rights, and the qualifications, limitations and
restrictions which make its value approximately equal to the value of a Common
Share. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement"), dated as of November 17, 2004, entered into
between the Company and American Stock Transfer & Trust Company, as rights agent
(the "Rights Agent").
Initially, the Rights will be evidenced by the stock certificates
representing the Common Shares then outstanding, and no separate Right
Certificates, as defined, will be distributed. Until the earlier to occur of (i)
the date of a public announcement that a person, entity or group of affiliated
or associated persons have acquired beneficial ownership of 15% or more of the
outstanding Common Shares after the date of the adoption of the Rights
Agreement, subject to certain exceptions set forth in the Rights Agreement (an
"Acquiring Person"), or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
or entity becomes an Acquiring Person) following the commencement of, or
announcement of an intention to commence, a tender offer or exchange offer the
consummation of which would result in any person or entity becoming an Acquiring
Person (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate with or
without a copy of the summary of rights, which is included in the Rights
Agreement as Exhibit C thereof (the "Summary of Rights").
Until the Distribution Date, the Rights will be transferable with and
only with the Common Shares. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Share certificates issued after the
Record Date, upon transfer or new issuance of Common Shares, will contain a
notation incorporating the Rights Agreement by reference. Until the Distribution
Date (or earlier redemption or expiration of the Rights), the surrender or
transfer of any certificates for Common Shares outstanding as of the Record
Date, even without such notation or a copy of the Summary of Rights being
attached thereto, will also constitute the transfer of the Rights associated
with the Common Shares 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 Common Shares
as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
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The Rights are not exercisable until the Distribution Date. The Rights
will expire on November 29, 2014 (the "Final Expiration Date"), unless the
Rights are earlier redeemed or exchanged by the Company, in each case, as
described below.
In the event that any person or group of affiliated or associated
persons becomes an Acquiring Person, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring Person
and its associates and affiliates (which will thereafter be void), will for a
60-day period (or such longer period as necessary to register the Company's
securities) have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right (or, if such
number of shares is not and cannot be authorized, the Company may issue cash,
debt, other securities or a combination thereof in exchange for the Rights).
This right will terminate 60 days after the date on which the Rights become
nonredeemable (as described below), unless there is an injunction or similar
obstacle to exercise of the Rights, in which event this right will terminate 60
days after the date on which the Rights again become exercisable (or such longer
period as set forth in the Rights Agreement).
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold to an Acquiring Person, its associates or affiliates or certain
other persons in which such persons have an interest, proper provision will be
made so that each holder of a Right will thereafter have the right to receive,
upon the exercise thereof at the then current exercise price of the Right, that
number of shares of common stock of the acquiring company which at the time of
such transaction will have a market value of two times the exercise price of the
Right.
At any time after an Acquiring Person becomes an Acquiring Person and
prior to the acquisition by such Acquiring Person of 50% or more of the
outstanding Common Shares, the Board of Directors of the Company 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 Common Share per Right
(or, at the election of the Company, the Company may issue cash, debt, stock or
a combination thereof in exchange for the Rights), subject to adjustment.
At any time prior to the earliest of (i) the day that a person has
become an Acquiring Person or (ii) the Final Expiration Date, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $0.001 per Right (the "Redemption Price"). Following the expiration of
the above periods, the Rights become nonredeemable, except that after the
expiration of the period during which the Rights are exercisable for Common
Shares, then the Board of Directors of the Company may redeem the Rights in
whole, but not in part, at the Redemption Price in connection with a sale or
merger of the Company or its assets to a party which is unrelated to the
Acquiring Person. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, except that from and
after such time as the Rights are distributed no such amendment may adversely
affect the interests of the holders of the Rights, excluding the interests of an
Acquiring Person.
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.
The Rights have certain anti-takeover effects. 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 Rights should not
interfere with any merger or other business combination approved by the Board of
Directors, since the Rights may be amended to permit such acquisition or may be
redeemed by the Company at $0.001 per Right, as set forth above.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits.
99.1 Press Release dated November 17, 2004.
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99.2 Rights Agreement dated as of November 17, 2004 between
Bioenvision, Inc. and American Stock Transfer & Trust Company.
99.3 Form of Right Certificate (included as Exhibit B to Exhibit
99.2).
99.4 Certificate of Designation of Series A Junior Participating
Preferred Stock (included as Exhibit A to Exhibit 99.2).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
BIOENVISION, INC.
Dated: November 18, 2004 By: /s/ David P. Luci
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David P. Luci
Chief Financial Officer, General Counsel
and Corporate Secretary
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INDEX TO EXHIBITS
99.1 Press Release dated November 17, 2004.
99.2 Rights Agreement dated as of November 17, 2004 between
Bioenvision, Inc. and American Stock Transfer & Trust Company.
99.3 Form of Right Certificate (included as Exhibit B to Exhibit
99.2).
99.4 Certificate of Designation of Series A Junior Participating
Preferred Stock (included as Exhibit A to Exhibit 99.2).
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