Registration No. 333-_________
As filed with the Securities and Exchange Commission on August 11, 1998
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
PATHOGENESIS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 91-1542150
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
201 ELLIOTT AVENUE WEST
SEATTLE, WASHINGTON 98119
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
PATHOGENESIS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
CAMERON S. AVERY COPIES TO:
GENERAL COUNSEL WOON-WAH SIU
PATHOGENESIS CORPORATION BELL, BOYD & LLOYD
5215 OLD ORCHARD ROAD, SUITE 900 THREE FIRST NATIONAL PLAZA
SKOKIE, ILLINOIS 60077 CHICAGO, ILLINOIS 60602
(847) 583-8050 (312) 372-1121
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENTS FOR SERVICE)
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
===================================== ============== =============== ================ ============
<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share 200,000 shares $ 25.375(2) $ 5,075,000(2) $ 1,498(2)
===================================== ============== ============= ================ ============
<FN>
(1) Includes 200,000 Preferred Stock Purchase Rights evidenced by certificates
of shares of Common Stock that automatically trade with such Common Stock
("Rights"). Also includes an indeterminate number of additional shares
that may become issuable under the antidilution and other adjustment
provisions of the PathoGenesis Corporation Employee Stock Purchase Plan
pursuant to Rule 416(a) of the Securities Act of 1933, as amended, and a
a corresponding number of Rights.
(2) In accordance with Rule 457(h), calculated on the basis of the high and
low sale prices of the Registrant's Common Stock as quoted in the
consolidated reporting system of the Nasdaq National Market on August 5,
1998, as reported by The Wall Street Journal (Midwest Edition).
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be included herewith.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be included herewith.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This registration statement on Form S-8 relates to the registration of
shares of common stock of PathoGenesis Corporation (the "Company"), par value
$.001 per share (the "Common Stock").
The Company incorporates herein by reference the following documents in
this registration statement:
(a) The Company's annual report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 0-27150).
(b) The Company's quarterly report on Form 10-Q for the
quarter ended March 31, 1998, as amended by Amendment No. 1 on Form
10-Q/A (File No. 0-27150).
(c) The description of the Company's Common Stock set forth
under the caption "Description of Capital Stock --Common Stock" in the
Company's prospectus constituting a part of the registration statement
on Form S-1 (Reg. No. 333-22297), filed on February 25, 1997; and
(d) The description of the Company's Preferred Stock Purchase
Rights (the "Rights") in the Company's registration statement on Form
8-A filed on July 10, 1997, for the registration of the Rights under
Section 12(g) of the Securities Exchange Act of 1934 (File No.
0-27150).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all shares of Common
Stock of the Company offered hereby have been sold or which deregisters all of
such securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part hereof from the date of
filing of such documents. Any statement contained in any document incorporated
or deemed to be incorporated by reference in this registration statement shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a
Delaware corporation to indemnify any director or officer against expenses,
judgments, fines and settlements actually and reasonably incurred by such person
in connection with any action, suit or proceeding, if such director or officer
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful, except that no indemnification shall be made in connection
with any action by or in the right of the corporation if such person is adjudged
to be liable to the corporation, unless the court determines that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expense that the court shall deem proper. Said section
further provides that to the extent that any such person is successful on the
merits or otherwise in defense of any action such director or officer shall be
indemnified against expenses actually and reasonably incurred by him or her. In
addition, a Delaware corporation is authorized to purchase insurance on behalf
of its directors and officers against liabilities whether or not in the
circumstances the corporation would have the power to indemnify against such
liabilities under said section.
The Company's Amended and Restated Certificate of Incorporation
provides for indemnification of the Company's directors, officers, employees and
agents, to the fullest extent permitted by the Delaware General Corporation Law,
against all expense, liability and loss reasonably incurred or suffered by each
such person in connection with any action, suit, or proceeding to which such
person was or is made a party or is threatened to be a party by reason of the
fact that such person is a director, officer, employee or agent of the Company;
provided, however, except as provided in the Amended and Restated Certificate of
Incorporation with respect to proceedings to enforce rights to indemnification,
the Company shall indemnify any such person in connection with a proceeding
initiated by such person if the proceeding was authorized by the board of
directors of the Company. The Company has obtained directors and officers
insurance covering its directors and executive officers.
The Company's Amended and Restated Certificate of Incorporation
eliminates, to the fullest extent permitted by Delaware law, liability of a
director to the Company or its stockholders for monetary damages for breach of
the director's fiduciary duty of care except for liability where the director
(a) breaches his or her duty of loyalty to the Company or its shareholders, (b)
fails to act in good faith or engages in intentional misconduct or knowing
violation of law, (c) authorized a payment of an illegal dividend or stock
repurchase, or (d) obtains an improper personal benefit. While liability for
monetary damages has been eliminated, equitable remedies such as injunctive
relief or rescission remain available. In addition, a director is not relieved
of his or her responsibilities under any other law, including the federal
securities laws.
Insofar as indemnification by the Company for liabilities arising under
the Securities Act, may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit
Index which appears elsewhere in this registration statement and is hereby
incorporated by reference.
2
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c)-(g) Not applicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(i)-(j) Not applicable.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Skokie, State of Illinois, on August 11, 1998.
PATHOGENESIS CORPORATION
By /s/ ALAN R. MEYER
-------------------------
Alan R. Meyer
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
/S/ ALAN R. MEYER Executive Vice President, Chief August 11, 1998
- --------------------
Alan R. Meyer Financial Officer and Director
(Principal Financial and
Accounting Officer)
Wilbur H. Gantz Chairman, Chief Executive Officer, )
President and Director )
(Principal Executive Officer) )
)
John Gordon Director )
)
)
Elizabeth M. Greetham Director )By:/S/ ALAN R. MEYER
) -----------------
) Alan R. Meyer
) Attorney-in-Fact
Michael J. Montgomery Director ) August 11, 1998
)
)
Talat M. Othman Director )
)
)
Eugene L. Step Director )
)
)
Fred Wilpon Director )
(Being the principal executive officer, the principal financial and accounting
officer and a majority of the directors of PathoGenesis Corporation.)
ORIGINAL POWERS OF ATTORNEY AUTHORIZING WILBUR H. GANTZ AND ALAN R.
MEYER TO EXECUTE THIS REGISTRATION STATEMENT, AND AMENDMENT THERETO, FOR EACH OF
MS. GREETHAM AND MESSRS. GANTZ, GORDON, MEYER, MONTGOMERY, OTHMAN, STEP AND
WILPON HAVE BEEN EXECUTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
INDEX TO EXHIBITS
The following are filed as part of this registration statement.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4.1 Composite Certificate of Incorporation of the
Company, as amended through July 7, 1997
(incorporated reference to Exhibit 3.1(d) of the
Company's quarterly report on Form 10-Q for the
three months ended March 31, 1998, File No.
0-27150).
4.1(a) Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit
3.1 to the Company's registration statement on Form
S-1, Registration No. 333-22297).
4.1(b) Certificate of Amendment of Amended and Restated
Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 4.1(b) to the
Company's registration statement on Form S-8,
Registration No. 333-45571).
4.2 By-laws of the Company, as Amended through January
30, 1998 (incorporated by reference to Exhibit 3.2
to the Company's annual report on Form 10-K for
1997, File No. 0-27150).
4.3 Certificate of Designations (incorporated by
reference to Exhibit 4.1(b) to the Company's
registration statement on Form S-8, Registration No.
333-45571).
4.4 PathoGenesis Corporation Employee Stock Purchase
Plan (incorporated by reference to Appendix A to the
Company's proxy statement dated April 20, 1998, File
No. 0-27150).
4.5 Rights Agreement, dated as of June 26, 1997, between
the Company and Harris Trust and Savings Bank as
Rights Agent (incorporated by reference to Exhibit
No. 1 to the Company's registration statement on
Form 8-A, File No. 0-27150).
4.5(a) First Amendment, dated as of March 8, 1998, to
Rights Agreement between the Company and Harris
Trust and Savings Bank, as Rights Agent
(incorporated by reference to Exhibit 4.1(bb) to the
Company's annual report on Form 10-K for 1997, file
No. 0-27150).
5 Opinion of Bell, Boyd & Lloyd.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Bell, Boyd & Lloyd (included in
Exhibit 5).
24 Original Powers of Attorney authorizing
Wilbur H. Gantz or Alan R. Meyer to execute this
registration statement.
Exhibit 5
August 10, 1998
PathoGenesis Corporation
201 Elliott Avenue West
Seattle, Washington, 98119
PathoGenesis Corporation Employee Stock Purchase Plan
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to PathoGenesis Corporation, a
Delaware corporation (the "Company"), in connection with the preparation,
execution and filing of the registration statement on Form S-8 of the Company
(the "Registration Statement"), which covers 200,000 shares of common stock, par
value $.001 per share, of the Company (the "Shares"), offered under the
Company's Employee Stock Purchase Plan (the "Plan"). We have examined originals,
or copies certified or otherwise identified to our satisfaction, of the Plan and
such other documents, corporate and other records, certificates and other papers
as we deemed it necessary to examine for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and legally existing
under the law of the State of Delaware.
2. The Company has taken all action necessary to authorize (i) the
Plan, (ii) the offer for sale of the Shares pursuant to the
Plan, and (iii) the issuance of the shares of its common stock,
$.001 par value, in accordance with the Plan.
3. The Shares when issued in accordance with the Plan will, upon
such issuance, constitute legally issued,fully paid and
nonassessable shares of common stock, $.001 par value, of the
Company.
<PAGE>
We hereby consent to the filing of this Opinion Letter as an
exhibit to the Registration Statement for the registration of the Shares under
the Securities Act of 1933. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
Securities Act of 1933.
Very truly yours,
Bell, Boyd & Lloyd
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
PathoGenesis Corporation
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated January 23, 1998, relating to the consolidated
balance sheets of PathoGenesis Corporation (a development stage enterprise) and
subsidiary as of December 31, 1997 and 1996, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997, and for the period from
December 10, 1991 (inception) through December 31, 1997, which report appears in
the December 31, 1997, annual report on Form 10-K of PathoGenesis Corporation.
KPMG Peat Marwick LLP
Seattle, Washington
August 11, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Wilbur H. Gantz and Alan R. Meyer, or any
one of them, his/her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him/her and in his/her name, place, and
stead, in any and all capacities, to sign any and all pre- or post-effective
amendments to Registration Statement on Form S-8 relating to the PathoGenesis
Corporation Employee Stock Purchase Plan, and to file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or their, his/her substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
/s/ WILBUR H. GANTZ Chairman, Chief Executive June 4, 1998
- --------------------- Officer, President and Director
Wilbur H. Gantz (Principal Executive Officer)
/s/ ALAN R. MEYER Executive Vice President, Chief June 4, 1998
- --------------------- Financial Officer and Director
Alan R. Meyer (Principal Financial and
Accounting Officer)
/s/ JOHN L. GORDON Director) June 4, 1998
- ---------------------
John Gordon
/s/ ELIZABETH M. GREETHAM Director) June 4, 1998
- -------------------------
Elizabeth M. Greetham
/s/ MICHAEL J. MONTGOMERY Director) June 4, 1998
- -------------------------
Michael J. Montgomery
/s/ TALAT M. OTHMAN Director) June 4, 1998
- -----------------------
Talat M. Othman
/s/ EUGENE L. STEP Director) June 4, 1998
- -----------------------
Eugene L. Step
/s/ FRED WILPON Director) June 4, 1998
- -----------------------
Fred Wilpon
