As filed with the Securities and Exchange Commission on
November 12, 1996 Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Aradigm Corporation
(Exact name of registrant as specified in its charter)
California 94-3133088
(State of Incorporation) (I.R.S. Employer Identification No.)
26219 Eden Landing Road
Hayward, California 94545
(510) 783-3100
(Address and telephone number of principal executive offices)
1996 Equity Incentive Plan
Employee Stock Purchase Plan
1996 Non-Employee Directors' Stock Option Plan
Richard P. Thompson
President and Chief Executive Officer
Aradigm Corporation
26219 Eden Landing Road
Hayward, California 94545
(510) 783-0100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Jeffrey S. Zimman, Esq.
Jamie E. Chung, Esq.
Cooley Godward llp
One Maritime Plaza, 20th Floor
San Francisco, CA 94111
(415) 693-2000
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Maximum Registration
to be Offering Aggregate Fee
Registered Price Per Offering
Share(1) Price(1)
Stock Options 1,341,490 $5.00 - $12,057,788.50 $3,653.51
and Common $10.0625
Stock (no par
value)
(1) Estimated solely for the purpose of calculating the amount
of the registration fee. The offering price per share and
aggregate offering price are based upon (a) the weighted
average exercise price, for shares subject to options
previously granted under the Aradigm Corporation ("Company"
or "Registrant") 1996 Equity Incentive Plan (the "1996
Plan") (pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Act")) (b) the average of the high
and low prices of the Company's Common Stock as reported on
the Nasdaq National Market on November 8, 1996 for (i)
shares available for grant pursuant to the 1996 Non-Employee
Directors' Stock Option Plan, (ii) shares available for
grant pursuant to the 1996 Plan and (iii) shares available
for grant pursuant to the Employee Stock Purchase Plan
(pursuant to Rule 457(c) under the Act). The following
chart shows the calculation of the registration fee:
Type of Shares Number of Offering Aggregate
Shares Price Offering Price
Per Share
Shares issuable pursuant 284,633 $5.00(1)(a) $1,423,165.00
to outstanding options
under the 1996 Equity
Incentive Plan
Shares issuable pursuant 681,857 (1)(b) $6,861,186.00
to the 1996 Equity
Incentive Plan
Shares issuable pursuant 225,000 (1)(b) $2,264,062.50
to the 1996 Non-Employee
Directors' Stock Option
Plan
Shares issuable pursuant 150,000 (1)(b) $1,509,375.00
to the Employee Stock
Purchase Plan
Proposed Maximum $12,057,788.50
Aggregate Offering Price
x .000303
Registration Fee $3,653.51
______________
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this Registration Statement
becomes effective.
PART II
Item 3. Incorporation Of Certain Documents By Reference
The following documents filed by the Company with the
Securities and Exchange Commission are incorporated by reference
into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or either (1) the
Company's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Act"), that contains
audited financial statements for the Company's latest fiscal year
for which such statements have been filed, or (2) the Company's
effective registration statement on Form 10 or 20-F filed under
the Exchange Act containing audited financial statements for the
Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the annual reports, the prospectus or the registration
statement referred to in (a) above.
(c) The description of the Company's Common Stock which is
contained in a registration statement filed under the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of
this registration statement from the date of the filing of such
reports and documents.
Item 6. Indemnification Of Directors And Officers
The Company's Amended and Restated Articles of Incorporation
and Bylaws include provisions to (i) eliminate the personal
liability of its directors for monetary damages resulting from
breaches of their fiduciary duty to the extent permitted by
California law and (ii) permit the Company to indemnify its
directors and officers, employees and other agents to the fullest
extent permitted by the California Corporations Code (the
"Corporations Code"). Pursuant to Section 317 of the
Corporations Code, a corporation generally has the power to
indemnify its present and former directors, officers, employees
and agents against any expenses incurred by them in connection
with any suit to which they are, or are threatened to be made, a
party by reason of their serving in such positions so long as
they acted in good faith and in a manner they reasonably believed
to be in, or not opposed to, the best interests of a corporation,
and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Company
believes that these provisions are necessary to attract and
retain qualified persons as directors and officers. These
provisions do not eliminate liability for breach of the
director's duty of loyalty to the Company or its shareholders,
for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for any transaction from
which the director derived an improper personal benefit or for
any willful or negligent payment of any unlawful dividend.
The Company has entered into agreements with its directors and
executive officers that require the Company to indemnify such
persons against expenses, judgments, fines, settlements and other
amounts that such person becomes legally obligated to pay
(including expenses of a derivative action) in connection with
any proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person
is or was a director or officer of the Company or any of its
affiliated enterprises, provided such person acted in good faith
and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Company. The
indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification
thereunder.
EXHIBITS
Exhibit
Number
5.1 Opinion of Cooley Godward llp.
24.1 Consent of Ernst & Young llp, independent auditors.
24.2 Consent of Bregante + Company llp, independent
auditors
24.3 Consent of Cooley Godward llp. Reference is made to
Exhibit 5.1.
25.1 Power of Attorney. Reference is made to the
signature pages.
99.1* Registrant's 1996 Equity Incentive Plan (the "1996
Plan").
99.2* Form of Incentive Stock Option under the 1996 Plan.
99.3* Form of Non-Statutory Stock Option under the 1996
Plan.
99.4* Registrant's Employee Stock Purchase Plan.
99.5* Registrant's 1996 Non-Employee Directors' Stock
Option Plan (the "Directors' Plan").
99.6* Form of Non-Statutory Stock Option under the
Directors' Plan.
* Documents incorporated by reference from the Registrant's
Form S-1 Registration Statement (File No. 333-4236) filed on
April 30, 1996.
Item 9. Undertakings
(d) The undersigned registrant hereby undertakes:
a. 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;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) ( 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
iii. To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (A)(1)(a) and (A)(1)(b) do
not apply if the registration statement is on Form S-3 or
Form S-8 and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
b. 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.
c. 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.
(e) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Exchange Act of 1934)
that is incorporated by reference in the 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.
(f) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant 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.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant 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
registrant 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 and will be governed by the final adjudication
of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, as amended, the Registrant 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 Hayward,
State of California, on November 8, 1996.
ARADIGM CORPORATION
By:/s/ Richard P. Thompson
Richard P. Thompson
President and Chief
Executive Officer
(Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Richard P.
Thompson and Reid M. Rubsamen, and each or any one of them, his
true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including 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 attorneys-
in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Richard P. Thompson President, Chief November 8,
Richard P. Thompson Executive Officer and 1996
Director (Principal
Executive Officer and
Principal Financial
Officer)
/s/ Reid M. Rubsamen, M.D. Vice President, November 8,
Reid M. Rubsamen, M.D. Medical Affairs, 1996
Secretary and Director
/s/ Lester John Lloyd Chairman of the Board November 8,
Lester John Lloyd of Directors 1996
/s/ Burton J. McMurtry, Ph.D. Director November 8,
Burton J. McMurtry, Ph.D. 1996
/s/ Gordon Russell Director November 8,
Gordon Russell 1996
/s/ Jared A. Anderson, Ph.D. Director November 8,
Jared A. Anderson, Ph.D. 1996
/s/ Ross A. Jaffe, M.D. Director November 8,
Ross A. Jaffe, M.D. 1996
/s/ Virgil Thompson Director November 8,
Virgil Thompson 1996
/s/ Fred Silverstein, M.D. Director November 8,
Fred Silverstein, M.D. 1996
EXHIBIT INDEX
Exhibit Description
Number
5.1 Opinion of Cooley Godward llp.
24.1 Consent of Ernst & Young llp,
independent auditors.
24.2 Consent of Bregante + Company llp,
independent auditors.
24.3 Consent of Cooley Godward llp.
Reference is made to Exhibit 5.1.
25.1 Power of Attorney. Reference is made
to the signature pages.
99.1* Registrant's 1996 Equity Incentive
Plan (the "1996 Plan").
99.2* Form of Incentive Stock Option under
the 1996 Plan.
99.3* Form of Non-Statutory Stock Option
under the 1996 Plan.
99.4* Registrant's Employee Stock Purchase
Plan.
99.5* Registrant's 1996 Non-Employee
Directors' Stock Option Plan (the
"Directors' Plan").
99.6* Form of Non-Statutory Stock Option
under the Directors' Plan.
* Documents incorporated by reference from the Registrant's
Form S-1 Registration Statement (File No. 333-4236) filed on
April 30, 1996.
Exhibit 5.1 OPINION OF COOLEY GODWARD LLP
November 8, 1996
Aradigm Corporation
26219 Eden Landing Road
Hayward, CA 94545
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Aradigm Corporation (the "Company")
of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission covering
the offering of up to 1,341,490 shares of the Company's Common
Stock, no par value, (the "Shares") pursuant to its 1996 Non-
Employee Directors' Plan, 1996 Equity Incentive Plan and
Employee Stock Purchase Plan (collectively, the "Plans").
In connection with this opinion, we have examined the
Registration Statement and related Prospectus, the Plans, your
Articles of Incorporation and Bylaws, as amended, and such other
documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of
the opinion that the Shares, when issued and paid for in
accordance with the Plans, the Registration Statement and Related
Prospectus will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment
arrangements, which will be fully paid and nonassessable when
such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Jeffrey S. Zimman
Jeffrey S. Zimman
Exhibit 24.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1996 Equity Incentive
Plan, the Employee Stock Purchase Plan and the 1996 Non-Employee
Directors' Stock Option Plan, of our report, dated February 23,
1996, except Note 8 as to which the date is June 11, 1996, with
respect to the financial statements of Aradigm Corporation
included in its Registration Statement and Prospectus (Form S-1
No. 333-4236) filed with the Securities and Exchange Commission.
Palo Alto, California
November 8, 1996
Exhibit 24.2 CONSENT OF BREGANTE + COMPANY LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1996 Equity Incentive
Plan, the Employee Stock Purchase Plan and the 1996 Non-Employee
Directors' Stock Option Plan, of our report, dated February 22,
1994, with respect to the financial statements of Aradigm
Corporation included in its Registration Statement and Prospectus
(Form S-1 No. 333-4236) filed with the Securities and Exchange
Commission.
San Francisco, California
November 8, 1996
