REGISTRATION NO. 333-
As filed with the Securities and Exchange Commission on February __,1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 1997 STOCK OPTION 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 910 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)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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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>
Common Stock, par value $.001 per share 1,035,495 Shares $30.07(2) $31,137,335(2) $9,436(2)
Common Stock, par value $.001 per share 964,505 Shares $36.31(3) $35,023,588(3) $10,614(3)
(1) THE REGISTRATION STATEMENT ALSO INCLUDES AN INDETERMINATE NUMBER OF
ADDITIONAL SHARES THAT MAY BECOME ISSUABLE UNDER THE ANTIDILUTION AND
OTHER ADJUSTMENT PROVISIONS OF THE PATHOGENESIS CORPORATION 1997 STOCK
OPTION PLAN (THE "1997 PLAN") PURSUANT TO RULE 416(A) OF THE SECURITIES
ACT OF 1933, AS AMENDED.
(2) BASED ON THE WEIGHTED AVERAGE EXERCISE PRICE OF CURRENTLY OUTSTANDING
OPTIONS UNDER THE 1997 PLAN.
(3) 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 JANUARY
28, 1998, AS REPORTED BY THE WALL STREET JOURNAL (MIDWEST EDITION).
</TABLE>
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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, 1996 (File No. 0-27150);
(b) The Company's quarterly report on Form 10-Q for each of
the quarters ended March 31, 1997, June 30, 1997 and September 30,
1997;
(c) The Company's current reports on Form 8-K dated,
respectively, June 26, 1997 and December 30, 1997;
(d) 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
(e) 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.
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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 provide
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 directors
(a) breaches his or her duty of loyalty to the Company or its stockholders, (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.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned 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 undersigned 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.
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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 February 3, 1998.
PATHOGENESIS CORPORATION
By /S/ ALAN R. MEYER
------------------------------
Alan R. Meyer
Senior 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 Senior Vice President, Chief February 3, 1998
Alan R. Meyer Financial Officer and Director
(Principal Financial and
Accounting Officer)
Wilbur H. Gantz 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 ) February 3, 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 POWER 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. GORDON, MONTGOMERY, OTHMAN, STEP AND WILPON HAVE BEEN
EXECUTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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INDEX TO EXHIBITS
The following are filed as part of this registration statement.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
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.
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's registration
statement on Form S-1, Registration No. 333-22297).
4.3 Certificate of Designations.
4.4 PathoGenesis Corporation 1997 Stock Option Plan (incorporated
by reference to Annex A to the Company's proxy statement
dated April 29, 1997, 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)
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 and
Alan R. Meyer to execute this registration statement.
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Exhibit 4.1(b)
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PATHOGENESIS CORPORATION
PathoGenesis Corporation (the "Corporation"), a corporation duly
organized and validly existing under and by virtue of the General Corporation
Law of the State of Delaware, does hereby certify:
FIRST: That Article Fourth Paragraph A of the Amended and Restated
Certificate of Incorporation of the Corporation is hereby amended in its
entirety to read as follows:
"The aggregate number of shares which the Corporation shall
have authority to issue is 61,000,000, of which 1,000,000
shares of the par value of $.01 per share shall be designated
"Preferred Stock" and 60,000,000 shares of the par value of
$.001 per share shall be designated "Common Stock."
SECOND: In accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware, the Certificate of Amendment has been
duly adopted and approved by a majority of the stockolders of the Corporation at
the Annual Meeting of the stockholders on June 25, 1997.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Sections 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
executed on its behalf this 7th day of July, 1997.
PATHOGENESIS CORPORATION
By:/S/ ALAN R. MEYER
--------------------------------------
Alan R. Meyer, Senior Vice President
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PREFERRED STOCK
OF
PATHOGENESIS CORPORATION
PURSUANT TO SECTION 151 OF THE DELAWARE
GENERAL CORPORATION LAW
I, Alan R. Meyer, Senior Vice President of PathoGenesis Corporation, a
corporation organized and existing under the Delaware General Corporation Law
(the "Company"), in accordance with the provisions of Section 151 of such law,
DO HEREBY CERTIFY that at a meeting of the Board of Directors on June 26, 1997,
at which meeting a quorum was present, that the following resolutions were
adopted:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of Article FOURTH of
the Company's Amended and Restated Certificate of Incorporation, as amended, a
series of Preferred Stock of the Company be, and hereby is, created, and the
powers, designations, preferences and relative, participating, optional or other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof, be, and hereby are, as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Preferred Stock" (the "Series A Preferred Stock")
and the number of shares constituting such series shall be 200,000, however, if
more than a total of 200,000 shares of Series A Preferred Stock shall be
issuable upon the exercise of Rights (the "Rights") issued pursuant to the
Rights Agreement, dated as of June 26, 1997, between the Company and
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Harris Trust and Savings Bank, as Rights Agent (as such agreement may be amended
from time to time, the "Rights Agreement"), the Board of Directors of the
Company shall direct by resolution or resolutions that the total number of
shares of Series A Preferred Stock authorized to be issued be increased (to the
extent that the Certificate of Incorporation, as amended, then permits) to the
largest number of whole shares (rounded up to the nearest whole number) issuable
upon exercise of such Rights.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the provisions for adjustment hereinafter set
forth, the holders of shares of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 1,000 times the aggregate per share amount of all
cash dividends declared or paid on the Company's Common Stock, $0.001 par value
per share (the "Common Stock"), and (ii) a preferential cash dividend (the
"Preferential Dividends"), if any, in preference to the holders of Common Stock,
on the first day of March, June, September and December of each year (each a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, payable in an amount (except in the case of the first
Quarterly Dividend Payment if the date of the first issuance of Series A
Preferred Stock is a date other than a Quarterly Dividend Payment Date, in which
case such payment shall be a prorated amount of such amount) equal to $100 per
share of Series A Preferred Stock less the per share amount of all cash
dividends declared on the Series A Preferred Stock pursuant to clause (i) of
this sentence since the immediately preceding Quarterly Dividend Payment
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Date or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred Stock.
In the event the Company shall, at any time after the issuance of any share or
fraction of a share of Series A Preferred Stock, make any distribution on the
shares of Common Stock of the Company, whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or partial
liquidation of the Company or otherwise, which is payable in cash or any debt
security, debt instrument, real or personal property or any other property
(other than cash dividends subject to the immediately preceding sentence, a
distribution of shares of Common Stock or other capital stock of the Company or
a distribution of rights or warrants to acquire any such share, including any
debt security convertible into or exchangeable for any such share, at a price
less than the Fair Market Value (as hereinafter defined) of such share), then,
and in each such event, the Company shall simultaneously pay on each then
outstanding share of Series A Preferred Stock of the Company a distribution, in
like kind, of 1,000 times such distribution paid on a share of Common Stock
(subject to the provisions for adjustment hereinafter set forth). The dividends
and distributions on the Series A Preferred Stock to which holders thereof are
entitled pursuant to clause (i) of the first sentence of this paragraph and
pursuant to the second sentence of this paragraph are hereinafter referred to as
"Dividends" and the multiple of such cash and non-cash dividends on the Common
Stock applicable to the determination of the Dividends, which shall be 1,000
initially but shall be adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Dividend Multiple". In the event the Company
shall at any time after July 10, 1997, declare or pay any dividend or make any
distribution on Common Stock payable in shares of Common Stock, or effect a
subdivision or split or a combination, consolidation or reverse split of the
outstanding
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shares of Common Stock into a greater or lesser number of shares of
Common Stock, then in each such case the Dividend Multiple thereafter applicable
to the determination of the amount of Dividends which holders of shares of
Series A Preferred Stock shall be entitled to receive shall be the Dividend
Multiple applicable immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare each Dividend at the same time
it declares any cash or non-cash dividend or distribution on the Common Stock in
respect of which a Dividend is required to be paid. No cash or non-cash dividend
or distribution on the Common Stock in respect of which a Dividend is required
to be paid shall be paid or set aside for payment on the Common Stock unless a
Dividend in respect of such dividend or distribution on the Common Stock shall
be simultaneously paid, or set aside for payment, on the Series A Preferred
Stock.
(C) Preferential Dividends shall begin to accrue on
outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of any shares of Series A
Preferred Stock. Accrued but unpaid Preferential Dividends shall cumulate but
shall not bear interest. Preferential Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
Section 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
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(A) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the holders of the Common
Stock. The number of votes which a holder of Series A Preferred Stock is
entitled to cast, as the same may be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Vote Multiple". In the event the
Company shall at any time after July 10, 1997 declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or split
or a combination, consolidation or reverse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common Stock, then in
each such case the Vote Multiple thereafter applicable to the determination of
the number of votes per share to which holders of shares of Series A Preferred
Stock shall be entitled after such event shall be the Vote Multiple immediately
prior to such event multiplied by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Company's
Certificate of Incorporation or By-laws, in each case as the same may be
amended, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Company.
(C) In the event that the Preferential Dividends accrued on
the Series A Preferred Stock for four or more quarterly dividend periods,
whether consecutive or not, shall not have been declared and paid or irrevocably
set aside for payment, the holders of record of Preferred Stock of the Company
of all series (including the Series A Preferred Stock), other than any series in
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respect of which such right is expressly withheld by the authorizing resolutions
therefor, shall have the right, at the next meeting of stockholders called for
the election of directors, to elect two members to the Board of Directors, which
directors shall be in addition to the number required by the By-laws, as
amended, prior to such event, to serve until the next Annual Meeting and until
their successors are elected and qualified or their earlier resignation, removal
or incapacity or until such earlier time as all accrued and unpaid Preferential
Dividends upon the outstanding shares of Series A Preferred Stock shall have
been paid (or irrevocably set aside for payment) in full. The holders of shares
of Series A Preferred Stock shall continue to have the right to elect directors
as provided by the immediately preceding sentence until all accrued and unpaid
Preferential Dividends upon the outstanding shares of Series A Preferred Stock
shall have been paid (or set aside for payment) in full. Such directors may be
removed and replaced by such stockholders, and vacancies in such directorships
may be filled only by such stockholders (or by the remaining director elected by
such stockholders, if there be one) in the manner permitted by law; provided,
however, that any such action by stockholders shall be taken at a meeting of
stockholders and shall not be taken by written consent thereto.
(D) Except as otherwise required by the Certificate of
Incorporation or By-laws or set forth herein, in each case as the same may be
amended, holders of Series A Preferred Stock shall have no other special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for the
taking of any corporate action.
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Section 4. CERTAIN RESTRICTIONS.
(A) Whenever Preferential Dividends or Dividends are in arrears or the
Company shall be in default of payment thereof, thereafter and until all accrued
and unpaid Preferential Dividends and Dividends, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid or set
irrevocably aside for payment in full, and in addition to any and all other
rights which any holder of shares of Series A Preferred Stock may have in such
circumstances, the Company shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration, any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series A Preferred Stock, unless dividends are paid
ratably on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled if
the full dividends accrued thereon were to be paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such
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parity stock in exchange for shares of any stock of the Company
ranking junior (both as to dividends and upon liquidation, dissolution
or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock (either as to dividends or
upon liquidation, dissolution or winding up), except in accordance with
a purchase offer made to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Company shall not permit any Subsidiary (as
hereinafter defined) of the Company to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at
such time and in such manner. A "Subsidiary" of the Company shall mean any
corporation or other entity of which securities or other ownership interests
having ordinary voting power sufficient to elect a majority of the board of
directors of such corporation or other entity or other persons performing
similar functions are beneficially owned, directly or indirectly, by the Company
or by any corporation or other entity that is otherwise controlled by the
Company.
(C) The Company shall not issue any shares of Series A
Preferred Stock except upon exercise of Rights issued pursuant to the Rights
Agreement, a copy of which is on file with the Secretary of the Company at its
principal executive office and shall be made available to stockholders of record
without
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charge upon written request therefor addressed to said Secretary.
Notwithstanding the foregoing sentence, nothing contained in the provisions
hereof shall prohibit or restrict the Company from issuing for any purpose any
series of Preferred Stock with rights and privileges similar to, different from,
or greater than, those of the Series A Preferred Stock.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
upon their retirement and cancellation shall become authorized but unissued
shares of Preferred Stock, without designation as to series, and such shares may
be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any voluntary
or involuntary liquidation, dissolution or winding up of the Company, no
distribution shall be made (i) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless the holders of shares of Series A Preferred
Stock shall have received for each share of Series A Preferred Stock, subject to
adjustment as hereinafter provided, (A) $250 per one one-thousandth of a share
plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment or, (B) if greater than the
amount specified in clause (i)(A) of this sentence, an amount equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Stock, as the same may be adjusted as hereinafter provided, and (ii) to the
holders of stock ranking on a parity upon liquidation, dissolution or winding up
with the Series A Preferred Stock, unless simultaneously therewith distributions
are made ratably on the Series A
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Preferred Stock and all other shares of such parity stock in proportion to the
total amounts to which the holders of shares of Series A Preferred Stock are
entitled under clause (i)(A) of this sentence and to which the holders of such
parity shares are entitled, in each case upon such liquidation, dissolution or
winding up. The amount to which holders of Series A Preferred Stock may be
entitled upon liquidation, dissolution or winding up of the Company pursuant to
clause (i)(B) of the foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount" and the multiple of the amount to be
distributed to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Company applicable pursuant to said clause to
the determination of the Participating Liquidation Amount, as said multiple may
be adjusted from time to time as hereinafter provided, is hereinafter referred
to as the "Liquidation Multiple". In the event the Company shall at any time
after July 10, 1997, declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of Common Stock into a
greater or lesser number of shares of Common Stock, then, in each such case, the
Liquidation Multiple thereafter applicable to the determination of the
Participating Liquidation Amount to which holders of Series A Preferred Stock
shall be entitled after such event shall be the Liquidation Multiple applicable
immediately prior to such event multiplied by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
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Section 7. CERTAIN RECLASSIFICATIONS AND OTHER EVENTS.
(A) In the event that holders of shares of Common Stock of the
Company receive after July 10, 1997, in respect of their shares of Common Stock
any share of capital stock of the Company (other than any share of Common Stock
of the Company), whether by way of reclassification, recapitalization,
reorganization, dividend or other distribution or otherwise (a "Transaction"),
then, and in each such event, the dividend rights, voting rights and rights upon
the liquidation, dissolution or winding up of the Company of the shares of
Series A Preferred Stock shall be adjusted so that after such event the holders
of Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect thereof to
which such holder was entitled immediately prior to such adjustment, to (i) such
additional dividends as equal the Dividend Multiple in effect immediately prior
to such Transaction multiplied by the additional dividends which the holder of a
share of Common Stock shall be entitled to receive by virtue of the receipt in
the Transaction of such capital stock, (ii) such additional voting rights as
equal the Vote Multiple in effect immediately prior to such Transaction
multiplied by the additional voting rights which the holder of a share of Common
Stock shall be entitled to receive by virtue of the receipt in the Transaction
of such capital stock, and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such Transaction multiplied by the additional amount
which the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Company by virtue of the receipt
in the Transaction of such capital stock, as the case may be, all as provided by
the terms of such capital stock.
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(B) In the event that holders of shares of Common Stock of the
Company receive after July 10, 1997, in respect of their shares of Common Stock
any right or warrant to purchase Common Stock (including as such a right, for
all purposes of this paragraph, any security convertible into or exchangeable
for Common Stock) at a purchase price per share less than the Fair Market Value
of a share of Common Stock on the date of issuance of such right or warrant,
then and in each such event the dividend rights, voting rights and rights upon
the liquidation, dissolution or winding up of the Company of the shares of
Series A Preferred Stock shall each be adjusted so that after such event the
Dividend Multiple, the Vote Multiple and the Liquidation Multiple shall each be
the product of the Dividend Multiple, the Vote Multiple and the Liquidation
Multiple, as the case may be, in effect immediately prior to such event
multiplied by a fraction the numerator of which shall be the number of shares of
Common Stock outstanding immediately before such issuance of rights or warrants
plus the maximum number of shares of Common Stock which could be acquired upon
exercise in full of all such rights or warrants and the denominator of which
shall be the number of shares of Common Stock outstanding immediately before
such issuance of rights or warrants plus the number of shares of Common Stock
which could be purchased, at the Fair Market Value of the Common Stock at the
time of such issuance, for the maximum aggregate consideration payable upon
exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common Stock of the
Company receive after July 10, 1997, in respect of their shares of Common Stock
any right or warrant to purchase capital stock of the Company (other than shares
of Common Stock), including as such a right, for all purposes of this paragraph,
any security convertible into or exchangeable for capital
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stock of the Company (other than Common Stock), at a purchase price per share
less than the Fair Market Value of such shares of capital stock on the date of
issuance of such right or warrant, then and in each such event the dividend
rights, voting rights and rights upon liquidation, dissolution or winding up of
the Company of the shares of Series A Preferred Stock shall each be adjusted so
that after such event each holder of a share of Series A Preferred Stock shall
be entitled, in respect of each share of Series A Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such event, to receive (i) such additional dividends as
equal the Dividend Multiple in effect immediately prior to such event
multiplied, first, by the additional dividends to which the holder of a share of
Common Stock shall be entitled upon exercise of such right or warrant by virtue
of the capital stock which could be acquired upon such exercise and multiplied
again by the Discount Fraction (as hereinafter defined), and (ii) such
additional voting rights as equal the Vote Multiple in effect immediately prior
to such event multiplied, first, by the additional voting rights to which the
holder of a share of Common Stock shall be entitled upon exercise of such right
or warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction, and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Company as equal the Liquidation Multiple in effect immediately prior to such
event multiplied, first, by the additional amount which the holder of a share of
Common Stock shall be entitled to receive upon liquidation, dissolution or
winding up of the Company upon exercise of such right or warrant by virtue of
the capital stock which could be acquired upon such exercise and multiplied
again by the Discount Fraction. For purposes of this paragraph, the "Discount
Fraction" shall be a fraction the numerator of
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which shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares of
Common Stock of the Company as contemplated by this paragraph immediately after
the distribution thereof and the purchase price per share for such share of
capital stock pursuant to such right or warrant and the denominator of which
shall be the Fair Market Value of a share of such capital stock immediately
after the distribution of such right or warrant.
(D) For purposes of this Certificate of Designations, the
"Fair Market Value" of a share of capital stock of the Company (including a
share of Common Stock) on any date shall be deemed to be the average of the
daily closing price per share thereof over the 30 consecutive Trading Days (as
such term is hereinafter defined) immediately prior to such date; provided,
however, that, in the event that such Fair Market Value of any such share of
capital stock is determined during a period which includes any date that is
within 30 Trading Days after (i) the ex-dividend date for a dividend or
distribution on stock payable in shares of such stock or securities convertible
into shares of such stock, or (ii) the effective date of any subdivision, split,
combination, consolidation, reverse stock split or reclassification of such
stock, then, and in each such case, the Fair Market Value shall be appropriately
adjusted by the Board of Directors of the Company to take into account
ex-dividend or post-effective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case, no such sale takes place on
such day, the average of the closing bid and asked prices, regular way (in
either case, as reported in the applicable transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange), or, if the shares are not listed or admitted to trading on the New
York Stock Exchange, as reported in the applicable
14
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transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares are listed or admitted to
trading or, if the shares are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
The Nasdaq Stock Market or such other system then in use, or if on any such date
the shares are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the shares selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is open for the
transaction of business or, if the shares are not listed or admitted to trading
on any national securities exchange, on which the New York Stock Exchange or
such other national securities exchange as may be selected by the Board of
Directors of the Company is open. If the shares are not publicly held or not so
listed or traded on any day within the period of 30 Trading Days applicable to
the determination of Fair Market Value thereof as aforesaid, "Fair Market Value"
shall mean the fair market value thereof per share as determined in good faith
by the Board of Directors of the Company. In either case referred to in the
foregoing sentence, the determination of Fair Market Value shall be described in
a statement filed with the Secretary of the Company.
Section 8. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
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<PAGE>
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote Multiple, the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
Section 9. EFFECTIVE TIME OF ADJUSTMENTS.
(A) Adjustments to the Series A Preferred Stock required by
the provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(B) The Company shall give prompt written notice to each
holder of a share of Series A Preferred Stock of the effect of any adjustment to
the voting rights, dividend rights or rights upon liquidation, dissolution or
winding up of the Company of such shares required by the provisions hereof.
Notwithstanding the foregoing sentence, the failure of the Company to give such
notice shall not affect the validity of or the force or effect of or the
requirement for such adjustment.
Section 10. NO REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable at the option of the Company or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Company may acquire
shares of Series A Preferred Stock in any other manner permitted by law, and the
provisions hereof and the Certificate of Incorporation of the Company, in each
case as the same may be amended.
Section 11. RANKING. Unless otherwise provided in a Certificate of
Designations relating to a subsequent series of preferred stock of the Company,
the Series A Preferred Stock shall rank junior to all other series of the
Company's preferred stock, as to the payment of dividends and the
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distribution of assets on liquidation, dissolution or winding up and senior to
the Common Stock.
Section 12. AMENDMENT. The provisions hereof and the Certificate of
Incorporation, as amended, of the Company shall not be amended in any manner
which would adversely affect the rights, privileges or powers of the Series A
Preferred Stock without, in addition to any other vote of stockholders required
by law, the affirmative vote of the holders of two-thirds or more of the
outstanding shares of Series A Preferred Stock, voting together as a single
class.
IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Designations and do affirm the foregoing as true under the penalties of perjury
this 7th day of July, 1997.
/S/ ALAN R. MEYER
----------------------
Alan R. Meyer
Senior Vice President
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EXHIBIT 5
[LETTERHEAD OF BELL, BOYD & LLOYD]
February 3, 1998
PathoGenesis Corporation
201 Elliott Avenue West
Seattle, Washington, 98119
PathoGenesis Corporation 1997 Stock Option 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 2,000,000 shares of common stock,
par value $.001 per share, of the Company (the "Shares"), offered under the
Company's 1997 Stock Option 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>
PathoGenesis Corporation
February 3, 1998
Page 2
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
<PAGE>
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 17, 1997, except as to note 8 to the
financial statements, which is as of January 30 ,1997, relating to the balance
sheets of PathoGenesis Corporation (a development stage enterprise) as of
December 31, 1996 and 1995, and the related statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1996, and for the period from December 10, 1991
(incorporation) through December 31, 1996, which report appears in the December
31, 1996, annual report on Form 10-K of PathoGenesis Corporation.
KPMG Peat Marwick LLP
Seattle, Washington
February 3, 1998
<PAGE>
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 this Registration Statement, 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 Chief Executive Officer, November 6, 1997
Wilbur H. Gantz President and Director
(Principal Executive Officer)
/S/ ALAN R. MEYER Senior Vice President, Chief November 6, 1997
Alan R. Meyer Financial Officer and Director
(Principal Financial and
Accounting Officer)
/S/ JOHN GORDON Director) November 6, 1997
John Gordon
/S/ ELIZABETH M. GREETHAM Director) November 6, 1997
- ----------------------------
Elizabeth M. Greetham
/S/ MICHAEL J. MONTGOMERY Director) November 6, 1997
- ----------------------------
Michael J. Montgomery
/S/ TALAT M. OTHMAN Director) November 6, 1997
- ----------------------------
Talat M. Othman
/S/ EUGENE L. STEP Director) November 6, 1997
- ----------------------------
Eugene L. Step
/S/ FRED WILPON Director) November 6, 1997
Fred Wilpon
<PAGE>
