UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO
SECTION 12(b) OR
(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ADMA BIOLOGICS, INC.
(Exact name of registrant as specified in its charter)
Delaware
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56-2590442
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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465 State Route 17
Ramsey, New Jersey
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07446
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(Address of principal executive offices)
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(Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class
to be so registered
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Name of each exchange on which
each class is to be registered
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Preferred Stock Purchase Rights
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Nasdaq Global Market
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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) or
(e), 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) or
(e), check the following box. ☐
If this form relates to the registration of a class of securities concurrently with a Regulation A offering, check the following box. ☐
Securities Act registration statement or Regulation A offering statement file number to which this form relates: Not Applicable
Securities registered pursuant to Section 12(g) of the Act: None.
Item 1. |
Description of Registrant’s Securities to be Registered.
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On December 20, 2021, the Board of Directors (the “
Board”) of ADMA Biologics, Inc., a Delaware corporation (the “Company”), approved and adopted a Rights
Agreement, dated as of December 20, 2021 (the “Rights Agreement”), by and between the Company and Continental Stock Transfer and Trust Company, as rights agent. Pursu
ant to the Rights Agreement, the Board
declared a dividend of one preferred share purchase right (each, a “
Right”) for each outstanding share of common stock, par value $0.0001, of the Company (each, a “
Common
Share” and, collectively, the “
Common Shares”). The
Rights are distributable to stockholders of record as of the close of business on December 30, 2021 (the “Record
Date”). One
Right also will be issued together with each
Common Share issued by the Company after December 30, 2021, but before the
Distribution Date (as defined below) (or the earlier redemption or expiration of the
Rights) and, in certain circumstances, after the
Distribution Date.
Generally, the Rights Agreement works by causing substantial dilution to any person or group that acquires beneficial ownership of ten percent (10%) or more of the
Common Shares without the approval of the Board. As a result, the overall effect of the Rights Agreement and the issuance of the
Rights may be to render more
difficult or discourage a merger, tender or exchange offer or other business combination involving the Company that is not approved by the Board. The Rights Agreement is not intended to interfere with any merger, tender or exchange offer or other
business combination approved by the Board. The Rights Agreement also does not prevent the Board from considering any offer that it considers to be in the best interest of its stockholders.
The following is a summary description of the
Rights and material terms and conditions of the Rights Agreement. This summary is intended to provide a general
description only, does not purport to be complete and is qualified in its entirety by reference to the complete text of the Rights Agreement, a copy of which is filed as
Exhibit 4.1 to this Registration
Statement on Form 8-A and incorporated herein by reference. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Rights Agreement.
The Rights
Subject to the terms, provisions and conditions of the Rights Agreement, if the
Rights become exercisable, each
Right
would initially represent the right to purchase from the Company one
one-thousandth of a share of a newly-designated series of preferred stock,
Series A
Junior Participating Preferred Stock, par value $0.0001 per share, of the Company (each, a “
Series A Preferred Share” and, collectively, the “
Series
A Preferred Shares”), at an exercise price of $8.00 per one
one-thousandth of a
Series A Preferred Share, subject to adjustment (the “Exercise Price”). If
issued, each one
one-thousandth of a
Series A Preferred Share would give the stockholder approximately the same dividend, voting and liquidation rights as
does one
Common Share. However, prior to exercise, a
Right does not give its holder any rights as a stockholder of the Company, including, without limitation, any
dividend, voting or liquidation rights. A copy of the Amended and Restated Certificate of Designation of Series A Junior Participating Preferred Stock that the Company intends to file with the Secretary of State of the State of Delaware on December
21, 2021 to designate the
Series A Preferred Shares is filed as
Exhibit 4.2 to this Registration Statement on Form 8-A and is incorporated herein by
reference.
Initial Exercisability
Initially, the
Rights will not be exercisable, certificates will not be sent to stockholders and the
Rights will
automatically trade with the
Common Shares. Until the
Rights separate from the
Common Shares and become exercisable
(or the earlier redemption or expiration of the
Rights), the
Rights will be evidenced by
Common Share certificates,
Rights relating to any uncertificated
Common Shares that are registered in book entry form will be represented by a notation in book entry on the records of the
Company, and the surrender for transfer of any
Common Shares will also constitute the transfer of the associated
Rights.
Subject to certain exceptions specified in the Rights Agreement, the
Rights will separate from the
Common
Shares and become exercisable following the earlier to occur of the tenth (10th) business day (or such later date as may be determined by the Board) after (i) the day on which a public announcement or filing with the Securities and Exchange
Commission (the “SEC”) is made indicating that a person has become an
Acquiring Person (as defined below) or that discloses information that reveals the existence of an
Acquiring Person (the “Shares Acquisition Date”), or (ii) the commencement by any person (other than certain exempted persons) of, or the first public announcement of the intent of any person (other
than certain exempted persons) to commence, a tender or exchange offer by or on behalf of a person, the successful consummation of which would result in any person (other than certain exempted persons) becoming an
Acquiring Person, irrespective of whether any shares are actually purchased or exchanged pursuant to such offer (the earlier of these dates is called the “
Distribution
Date”).
After the
Distribution Date, separate rights certificates will be issued and the
Rights may be transferred
other than in connection with the transfer of the underlying
Common Shares unless and until the Board has determined to effect an exchange pursuant to the Rights Agreement (as described below).
Acquiring Person
Under the Rights Agreement, an
Acquiring Person is any person who or that, together with all
Affiliates
and Associates (as defined in the Rights Agreement) of such person, from and after the first public announcement by the Company of the adoption of the Rights Agreement, is or becomes the beneficial owner of ten percent (10%) or more of the
Common Shares outstanding, subject to various exceptions. For purposes of the Rights Agreement, beneficial ownership is defined to include the ownership of derivative securities.
The Rights Agreement provides that an
Acquiring Person does not include the Company, any subsidiary of the Company, any employee benefit plan of the
Company or any subsidiary of the Company, or any person organized, appointed, or established to hold
Common Shares pursuant to any employee benefit plan of the Company or for the purpose of funding any
such plan.
The Rights Agreement also provides that the following persons shall not be deemed an
Acquiring Person thereunder: (i) any person who becomes the
beneficial owner of ten percent (10%) or more of the shares of Common Stock of the Company then outstanding solely as a result of the initial grant or vesting of any options, warrants, rights or similar interests (including restricted shares and
restricted stock units) by the Company to its directors, officers and employees pursuant to any employee benefit or stock ownership plan of the Company, or the acquisition of shares of Common Stock of the Company upon the exercise or conversion of
any such securities so granted; (ii) any person who as the result of an acquisition of shares of Common Stock by the Company (or any subsidiary of the Company, or any person organized, appointed, established or holding shares of Common Stock of the
Company for or pursuant to the terms of any such plan) that, by reducing the number of shares of Common Stock of the Company outstanding, increases the proportionate number of shares of Common Stock of the Company beneficially owned by such person
to ten percent (10%) or more of the
Common Shares then outstanding; (iii) any person who or that became the beneficial owner of ten percent (10%) or more of the
Common
Shares then outstanding as a result of the acquisition of
Common Shares directly from the Company; or (iv) any person who or that would otherwise be an
Acquiring
Person who or that the Board determines had become such inadvertently (including, without limitation, because (A) such person was unaware that it beneficially owned a percentage of the
Common Shares
that would otherwise cause such person to be an “
Acquiring Person,” or (B) such person was aware of the extent of its beneficial ownership of
Common Shares
but had no actual knowledge of the consequences of such beneficial ownership under the Rights Agreement), and who or that thereafter within five (5) business days of being requested by the Company, reduces such person’s beneficial ownership to less
than ten percent (10%) of the
Common Shares then outstanding.
“
Grandfathering” of Existing Holders
The Rights Agreement also provides that any person who beneficially owned ten percent (10%) or more of the
Common Shares immediately prior to the first
public announcement by the Company of the adoption of the Rights Agreement (each a “
Grandfathered Person”), shall not be deemed to be an “
Acquiring
Person” for purposes of the Rights Agreement unless and until a
Grandfathered Person becomes the beneficial owner of one or more additional
Common
Shares after the first public announcement by the Company of the adoption of the Rights Agreement (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding
Common
Shares, pursuant to a split, reclassification or subdivision of the outstanding
Common Shares or pursuant to the acquisition of beneficial ownership of
Common
Shares upon the vesting or exercise of any option, warrants or other rights, or upon the initial grant or vesting of restricted stock, granted or issued by the Company to its directors, officers and employees, pursuant to a compensation or benefits
plan or arrangement adopted by the Board).
However, if upon acquiring beneficial ownership of one or more additional
Common Shares at any time after the first public announcement by the Company of the adoption of
the Rights Agreement, the
Grandfathered Person does not, at such time, beneficially own ten percent (10%) or more of the
Common Shares then
outstanding, the
Grandfathered Person will not be treated as an “
Acquiring Person” for purposes of the Rights Agreement.
Flip-In Trigger
If a person becomes an
Acquiring Person, then, following the occurrence of the
Distribution Date
and subject to the terms, provisions and conditions of the Rights Agreement, each
Right will entitle the holder thereof to purchase from the Company, upon payment of the Exercise Price, in lieu of a number of
one
one-thousandths of a
Series A Preferred Share, a number of
Common Shares (or, in certain circumstances,
cash, property or other securities of the Company) having a then-current market value of twice the Exercise Price. However, the
Rights are not exercisable until such time as the
Rights are no longer redeemable by the Company, as further described below.
Following the occurrence of an event set forth in the preceding paragraph, all
Rights that are or, under certain circumstances specified in the Rights
Agreement, were beneficially owned by an
Acquiring Person or certain of its transferees will become null and void and nontransferable.
Flip-Over Trigger
If, after an
Acquiring Person obtains beneficial ownership of ten percent (10%) or more of the
Common
Shares, (i) the Company merges into another entity, (ii) an acquiring entity merges into the Company, or (iii) the Company sells or transfers more than fifty percent (50%) of its assets, cash flow or earning power, then each
Right (except for
Rights that have previously been voided as set forth above) will entitle the holder thereof to purchase, upon payment of the Exercise Price, in
accordance with the terms of the Rights Agreement, a number of shares of common stock of the person engaging in the transaction having a then-current market value of twice the Exercise Price.
Redemption of the Rights
At any time until the close of business on the tenth (10th) business day after the Shares Acquisition Date (or, if the tenth (10th) business day after the Shares Acquisition Date occurs before the
Record Date, the close of business on the Record Date), or thereafter under certain circumstances, the Company may redeem the
Rights in whole, but not in part, at a price of $0.001 per
Right (the “Redemption Price”). The Redemption Price may be paid in cash,
Common Shares or other forms of consideration, as determined by the Board, in the exercise
of its sole discretion. The redemption of the
Rights may be made effective at such time, on such basis and subject to such conditions as the Board in its sole discretion may establish. 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 without any interest thereon.
Exchange of the Rights
At any time after any person (other than certain exempted persons and
Grandfathered Persons) becomes an
Acquiring Person, and prior to the acquisition by any person of beneficial ownership of fifty percent (50%) or more of the
Common Shares, the Board may, at
its option, cause the Company to exchange all or part of the then outstanding and exercisable
Rights (other than
Rights held by the
Acquiring Person or any
Affiliate or Associate thereof, which would have become null and void and nontransferable in accordance with the terms of the
Rights Agreement), in whole or in part, for
Common Shares at an exchange ratio (subject to adjustment) of one
Common Share for each
Right.
In any exchange of the Rights pursuant to the Rights Agreement, the Company, at its option, may, and to the extent there are an insufficient number of authorized
Common Shares not reserved for any other purpose to exchange for all of the outstanding
Rights, shall, substitute preferred stock or other securities of the Company
for some or all of the
Common Shares exchangeable for
Rights such that the aggregate value received by a holder of
Rights
in exchange for each
Right is substantially the same value as one
Common Share. The exchange of the
Rights by the Board
may be made effective at such time, on such basis, and subject to such conditions as the Board in its sole discretion may establish. Immediately upon the action of the Board authorizing the exchange 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
Common
Shares or other consideration issuable in connection with the exchange.
Expiration of the Rights
The
Rights and the Rights Agreement will expire upon the earliest to occur of (i) the date on which all of the
Rights
are redeemed, (ii) the date on which the
Rights are exchanged, and (iii) the close of business on June 15, 2022.
Amendment of Rights Agreement
Except as otherwise provided in the Rights Agreement, the Company, by action of the Board, may from time to time, in its sole and absolute discretion, supplement or amend any provision of the
Rights Agreement in any respect without the approval of any holders of
Rights, including, without limitation, in order to (i) cure any ambiguity in the Rights Agreement, (ii) correct or supplement any
provision contained in the Rights Agreement that may be defective or inconsistent with any other provisions contained therein, (iii) shorten or lengthen any time period in the Rights Agreement, or (iv) otherwise change, amend, or supplement any
provisions in the Rights Agreement in any manner that the Company may deem necessary or desirable;
provided, however, that from and after such time as any person becomes an
Acquiring Person, the Rights Agreement may not be supplemented or amended in any manner that would adversely affect the interests of the holders of
Rights (other
than
Rights that have become null and void pursuant to the Rights Agreement) as such or cause the Rights Agreement to become amendable other than in accordance with the terms of the Rights Agreement. Without
limiting the foregoing, the Company, by action of the Board, may at any time before any person becomes an
Acquiring Person amend the Rights Agreement to make the provisions of the Rights Agreement
inapplicable to a particular transaction by which a person might otherwise become an
Acquiring Person or to otherwise alter the terms and conditions of the Rights Agreement as they may apply with
respect to any such transaction.
Rights of Holders
Until a
Right is exercised, a
Right does not give its holder any rights as a stockholder of the Company, including,
without limitation, any dividend, voting or liquidation rights.
Anti-Dilution Provisions
The Board may adjust the Exercise Price, the number of
Series A Preferred Shares issuable and the number of outstanding
Rights to prevent dilution that may occur from a stock dividend, a stock split or a reclassification of the
Series A Preferred Shares or Common Shares.
With certain exceptions, no adjustments to the Exercise Price will be made until the cumulative adjustments amount to at least one percent (1%) of the Exercise Price. No fractional
Series A Preferred Shares will be issued other than fractions that are integral multiples of one
one-thousandth of a share and, in lieu thereof, an adjustment
in cash will be made based on the current market price of the
Series A Preferred Shares.
Tax Consequences
The adoption of the Rights Agreement and the subsequent distribution of the
Rights to stockholders should not be a taxable event for the Company or its
stockholders under presently existing U.S. federal income tax laws. However, if the
Rights become exercisable or if the
Rights are redeemed, stockholders may recognize
taxable income, depending on the circumstances then existing.
Accounting Treatment
The distribution of the
Rights as a dividend to the Company’s stockholders is not expected to have any financial accounting or reporting impact. The fair
value of the
Rights is expected to be zero when they are distributed because the
Rights will be “out of the money” when distributed and no value should be attributable
to them. Additionally, the
Rights do not meet the definition of a liability under generally accepted accounting principles in the United States and are therefore not accounted for as a long-term obligation.
Authority of the Board
When evaluating decisions relating to the redemption of the
Rights or any amendment to the Rights Agreement to delay or prevent the
Rights from detaching and becoming exercisable as a result of a particular transaction, pursuant to the Rights Agreement, the Board, or any future
board of directors, would
not be subject to restrictions such as those commonly known as “dead-hand,” “slow-hand,” “no-hand,” or similar provisions.
Certain Anti-Takeover Effects
The
Rights are not intended to prevent a takeover of the Company and should not interfere with any merger or other business combination approved by the
Board. However, the
Rights may cause substantial dilution to a person or group that acquires beneficial ownership of ten percent (10%) or more of the issued and outstanding
Common Shares (which includes for this purpose stock referenced in derivative transactions and securities) without the approval of the Board.
SEC Registration
Since the
Rights are not exercisable immediately, registration with the SEC of the
Series A Preferred
Shares issuable upon exercise of the
Rights is not required until the
Rights become exercisable.
See the Exhibit Index below, which is incorporated by reference herein.
EXHIBIT INDEX
Exhibit Number
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Description
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4.1
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Rights Agreement, dated as of December 20, 2021, by and between ADMA Biologics, Inc. and Continental Stock Transfer and Trust Company, as rights agent (incorporated by reference from Exhibit 4.1
to the registrant’s Current Report on Form 8-K filed December 20, 2021 (File No. 001-36728 ))
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4.2
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Amended and Restated Certificate of Designation of Series A Junior Participating Preferred Stock of ADMA Biologics, Inc. (incorporated by reference from Exhibit 3.1 to
the registrant’s Current Report on Form 8-K filed December 21, 2021 (File No. 001-36728))
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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.
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ADMA BIOLOGICS, INC.
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Date: December 21, 2021
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By:
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/s/ Adam S. Grossman
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Adam S. Grossman
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President and Chief Executive Officer
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