<PAGE> 1
As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
WOMEN FIRST HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3919601
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
12220 EL CAMINO REAL, SUITE 400
SAN DIEGO, CALIFORNIA 92130
(619) 509-1171
(Address of principal executive offices, including zip code, and
telephone number)
WOMEN FIRST HEALTHCARE, INC. 1998 LONG-TERM INCENTIVE PLAN
WOMEN FIRST HEALTHCARE, INC. INCENTIVE STOCK PLAN
(Full title of the plans)
<TABLE>
<S> <C>
DAVID F. HALE Copies to:
WOMEN FIRST HEALTHCARE, INC. SCOTT N. WOLFE, ESQ.
12220 EL CAMINO REAL, SUITE 400 LATHAM & WATKINS
SAN DIEGO, CALIFORNIA 92130 701 "B" STREET, SUITE 2100
(619) 509-1171 SAN DIEGO, CALIFORNIA 92101
(Name, address, including zip code, and telephone number, (619) 236-1234
including area code, of agent for service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Offering Registration
Registered(1) Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value 2,277,435 $(2) $4,968,755.86(2) $1,382
===================================================================================================================================
</TABLE>
(1) A maximum of 2,249,985 shares of Common Stock are reserved for issuance
under the Women First HealthCare, Inc. 1998 Long-Term Incentive Plan (the
"1998 Plan") and a maximum of 27,450 shares of Common Stock are reserved
for issuance under the Women First HealthCare, Inc. Incentive Stock Plan
(the "Incentive Stock Plan").
(2) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee, and is determined according to the
following offering price information: Of the 2,249,985 shares of Common
Stock reserved for issuance under the 1998 Plan being registered hereunder,
(i) 1,824,873 shares of Common Stock are subject to outstanding options
with an exercise price of $0.84 per share, (ii) 112,346 shares of Common
Stock are subject to outstanding options with an exercise price of $4.81
per share, (iii) 118,853 shares of Common Stock are subject to outstanding
options with an exercise price of $5.77 per share, (iv) 27,831 shares of
Common Stock are subject to outstanding options with an exercise price of
$11.39 per share, (v) 34,630 shares of Common Stock subject to outstanding
options with an exercise price of $11.00 per share, and (vi) 131,452 shares
of Common Stock are reserved for issuance upon exercise of options to be
granted in the future. Of the 27,450 shares of Common Stock reserved for
issuance under the Incentive Stock Plan, all of such shares are subject to
options with an exercise price of $0.29. Pursuant to Rule 457(h), for all
shares of Common Stock being registered hereunder with an exercise price
which cannot be presently determined (131,452 shares of Common Stock under
the 1998 Plan), the Proposed Maximum Offering Price Per Share is $11.44 per
share of Common Stock, which is based on the average of the high and low
prices for the Common Stock as reported on The Nasdaq National Market on
June 29, 1999.
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1
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) the Registrant's Prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities Act"), on
June 29, 1999;
(b) the description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed on June
24, 1999, pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date this Registration
Statement is filed with the Commission and 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 in this Registration Statement and to be a part
of it from the respective dates of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein 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.
2
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware (the "DGCL")
permits a Delaware corporation to indemnify officers, directors, employees and
agents for actions taken in good faith and in a manner they reasonably believed
to be in, or not opposed to, the best interests of the corporation, and with
respect to any criminal action, which they had no reasonable cause to believe
was unlawful. The DGCL also provides that a corporation may advance the expenses
of defense (upon receipt of a written undertaking to reimburse the corporation
if it is ultimately determined that such individual is not entitled to
indemnification) and must reimburse a successful defendant for expenses,
including attorneys' fees, actually and reasonably incurred. The DGCL further
provides that indemnification may not be made for any claim, issue or matter as
to which a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation, except
only to the extent a court determines that the person is entitled to indemnity
for such expenses that such court deems proper. The DGCL also permits a
corporation to purchase and maintain liability insurance for its directors and
officers.
The Registrant's Fourth Amended and Restated Certificate of
Incorporation and Second Amended and Restated Bylaws provide that the Registrant
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant) by reason of the fact that he or she is or
was a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action or suit or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Registrant, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his/her conduct was unlawful.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission. The Registrant has entered
into indemnification agreements with its officers and directors containing
provisions which may require the Registrant, among other things, to indemnify
the officers and directors against certain liabilities that may arise by reason
of their status or service as directors or officers (other than liabilities
arising from willful misconduct of a culpable nature), and to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified. The Registrant maintains insurance on behalf of its
directors and officers, insuring them against liabilities that they may incur in
such capacities or arising out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant 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, as amended (the
"Securities Act");
(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. 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) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent 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 this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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) 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) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 the Registrant is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 San Diego, State of California, on this 1st day of
July, 1999.
WOMEN FIRST HEALTHCARE, INC.
By: /s/ DAVID F. HALE
---------------------------------
DAVID F. HALE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint David F. Hale and Debra P.
Crawford, and each of them, with full power of substitution and full power to
act without the other, his or her true and lawful attorney-in-fact and agent to
act for him or her in his or her name, place and stead, in any and all
capacities, to sign any and all amendments including post-effective amendments
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act 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, hereby ratifying and confirming all that
said attorney-in-fact or his substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
Chairman of the Board and Director July , 1999
- -------------------------------------------
Edward F. Calesa
/s/ DAVID F. HALE President and Chief Executive Officer July 1, 1999
- ------------------------------------------- (Principal Executive Officer)
David F. Hale
/s/ DEBRA P. CRAWFORD Vice President and Chief Financial Officer July 1, 1999
- ------------------------------------------- (Principal Financial Officer and Principal
Debra P. Crawford Accounting Officer)
Director July , 1999
- -------------------------------------------
Charlotte Beers
Director July , 1999
- -------------------------------------------
Meredith A. Brokaw
/s / GARY V. PARLIN Director July 1, 1999
- -------------------------------------------
Gary V. Parlin
/s/ RICHARD L. RUBIN Director July 1, 1999
- -------------------------------------------
Richard L. Rubin
/s / JOHN SIMON Director July 1, 1999
- -------------------------------------------
John Simon
</TABLE>
<PAGE> 7
EXHIBIT INDEX
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EXHIBIT
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<S> <C>
4.1 Women First HealthCare, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference to Exhibit 10.3 to the Company's
Registration Statement on Form S-1 as filed with the Commission
on March 12, 1999 (File No. 333-74367).
4.2 Women First HealthCare, Inc. Incentive Stock Plan.
5.1 Opinion of Latham & Watkins.
23.1 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page hereto).
</TABLE>
<PAGE> 1
EXHIBIT 4.2
WOMEN FIRST, INC.
INCENTIVE STOCK PLAN
1. Purposes of the Plan. The purpose of this Incentive Stock Plan are:
o to attract and retain the best available personnel for positions of
substantial responsibility.
o to provide additional incentive to Employees (who may be Officers)
and Consultants, and
o to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant. Stock
Purchase Rights may also be granted under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Act" means the Securities Act of 1933, as amended.
(b) "Administrator" means the Board or any of its Committees as
shall be administering the Plan, in accordance with Section 4 of the Plan.
(c) "Applicable Laws" means the legal requirements relating to the
administration of stock option plans under state corporate and securities laws
and the Code.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means a Committee appointed by the Board in
accordance with Section 4 of the Plan.
(g) "Common Stock" means the Common Stock of the Company.
(h) "Company" means Women First, Inc., a Delaware corporation.
(i) "Consultant" means any person, including an advisor, engaged by
the Company or a Parent or Subsidiary to render services and who is compensated
for such services, provided that the term "Consultant" shall not include
Directors who are paid only a director's fee by the Company or who are not
compensated by the Company for their services as Directors.
(j) "Continuous Status as an Employee or Continuous Status as a
Consultant" means that the employment or consulting relationship, as the case
may be, with the Company or any Parent or Subsidiary is not interrupted or
terminated. Continuous Status as an Employee or
<PAGE> 2
Continuous Status as a Consultant shall not be considered interrupted in the
case of: (i) any leave of absence approved by the Company, including sick
leave, military leave, or any other personal leave; provided, however, that for
purposes of Incentive Stock Options, no such leave may exceed ninety (90) days,
unless reemployment upon the expiration of such leave is guaranteed by contract
(including certain Company policies) or statute; provided, further, that on the
ninety-first (91st) day of any such leave (where reemployment is not guaranteed
by contract or statute) the Optionee's Incentive Stock Option shall cease to be
treated as an Incentive Stock Option and will be treated for tax purposes as a
Nonstatutory Stock Option; or (ii) transfers between locations of the Company
or between the Company, its Parent, its Subsidiaries or its successor.
(k) "Director" means a member of the Board.
(l) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(m) "Non-Employee Director" shall have the meaning assigned to that
term in Rule 16b-3 adopted by the Securities and Exchange Commission under the
Exchange Act.
(n) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(p) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") System, the Fair Market
Value of a Share of Common Stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on
such system or exchange (or the exchange with the greatest volume of
trading in Common Stock) on the last market trading day prior to the
day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but
not on the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, the
Fair Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the last
market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
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(q) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(r) "Nonstatutory Stock Option" means an Option either not intended
to qualify or not qualifying as an Incentive Stock Option.
(s) "Notice of Grant" means a written notice evidencing certain
terms and conditions of an individual Option or Stock Purchase Right grant. The
Notice of Grant is part of the Option Agreement.
(t) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(u) "Option" means a stock option granted pursuant to the Plan.
(v) "Option Agreement" means a written agreement between the Company
and an Optionee evidencing the terms and conditions of an individual Option
grant. The Option Agreement is subject to the terms and conditions of the Plan.
(w) "Option Exchange Program" means a program whereby outstanding
options are surrendered in exchange for a lower exercise price.
(x) "Optioned Stock" means the Common Stock subject to an Option or
Stock Purchase Right.
(y) "Optionee" means an Employee or Consultant who holds an
outstanding Option or Stock Purchase right.
(z) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(aa) "Plan" means this Incentive Stock Plan.
(ab) "Restricted Stock" means share of Common Stock acquired pursuant
to a grant of Stock Purchase Rights under Section 11 below.
(ac) "Restricted Stock Purchase Agreement" means a written agreement
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(ad) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(ae) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 13 of the Plan.
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<PAGE> 4
(af) "Stock Purchase Right" means the right to purchase Common Stock
pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant.
(ag) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan Eligibility.
(a)(i) Maximum Number of Shares. Subject to the provisions of Section
14 of the Plan, the maximum aggregate number of Shares which may be optioned
and sold under the Plan is 100 Shares. The Shares may be authorized, but
unissued, or reacquired Common Stock. However, should the Company reacquire
Shares which were issued pursuant to the exercise of an Option or Stock
Purchase right, such Shares shall not become available for future grant under
the Plan.
(ii) Return of Expired Options. If an Option or Stock Purchase
Right expires or becomes unexercisable without having been exercised in full,
or is surrendered pursuant to an Option Exchange Program, the unpurchased
Shares which were subject thereto shall become available for future grant or
sale under the Plan (unless the Plan has terminated); provided, however, that
Shares have had actually been issued under the Plan, whether upon exercise of
an Option or Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, and the original purchaser of such Shares did not receive any benefits
of ownership of such Shares, such Shares shall become available for future
grant under the Plan. For purposes of the preceding sentence, voting rights
shall not be considered a benefit of Shares ownership.
(b) Eligibility and Participation. All Employees including directors
of the Company who are also Employees, shall be eligible to receive Incentive
Stock Options and Nonstatutory Stock Options. Consultants and other persons who
are not regular salaried Employees (including outside directors of the Company)
are not eligible to receive Incentive Stock Options, but are eligible to
receive Nonstatutory Stock Options.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. If permitted by Rule 16b-3,
the Plan may be administered by different bodies with respect to Directors,
Officers who are not Directors, and Employees who are neither Directors nor
Officers.
(ii) Administration With Respect to Directors and Officers
Subject to Section 16(b). With respect to Option or Stock Purchase Right grants
made to Employees who are also Officers or Directors subject to Section 16(b)
of the Exchange Act, the Plan shall be administered by a committee (the "16b-3
Committee") constituted so as to comply with Rule 16b-3, and shall consist of
(i) two or more Non-Employee Directors, or (ii) the entire Board; provided that
if a 16b-3 Committee is not required for such grant or grants to meet the
requirements of Rule 16b-3 then this sentence shall not be applicable. Once
appointed, such Committee shall continue to serve
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<PAGE> 5
in its designated capacity until otherwise directed by the Board. From time to
time the Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and substitute new members,
fill vacancies (however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by the
rules governing a plan intended to qualify as a discretionary plan under Rule
16b-3.
(iii) Administration With Respect to Other Persons. With respect
to Option or Stock Purchase Right grants made to Employees or Consultants who
are neither Directors nor Officers of the Company, the Plan shall be
administered by (A) the Board or (B) a committee consisting of members of the
Board designated by the Board, which committee shall be constituted to satisfy
Applicable Laws. Once appointed, such Committee shall serve in its designated
capacity until otherwise directed by the Board. The Board may increase the size
of the Committee and appoint additional members, remove members (with or
without cause) and substitute new members, fill vacancies (however caused), and
remove all members of the Committee and thereafter directly administer the Plan,
all to the extent permitted by Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value of the Common Stock in
accordance with Section 2(n) of the Plan;
(ii) to select the Consultants and Employees to whom Options and
Stock Purchase Rights may be granted hereunder;
(iii) to determine whether and to what extent Options and Stock
Purchase Rights or any combination thereof, are granted hereunder;
(iv) to determine the number of shares of Common Stock to be covered
by each Option and Stock Purchase Right granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or times when
Options or Stock Purchase Rights may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of forfeiture
restrictions and any restriction or limitation regarding any Option or Stock
Purchase Right or the shares of Common Stock relating thereto, based in each
case on such factors as the Administrator, in its sole discretion, shall
determine;
(vii) to reduce the exercise price of any Option or Stock Purchase
Right to the then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option or Stock Purchase Right shall have declined
since the date the Option or Stock Purchase Right was granted;
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<PAGE> 6
(viii) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations
relating to the plan;
(x) to modify and amend each Option or Stock Purchase Right
(subject to Section 16(c) of the Plan);
(xi) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option or Stock Purchase Right
previously granted by the Administrator;
(xii) to institute an Option Exchange Program;
(xiii) to determine the terms and restrictions applicable to
Options and Stock Purchase Rights and any Restricted Stock; and
(xiv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's
decisions, determinations and interpretations shall be final and binding on all
Optionees and any other holders of Options or Stock Purchase Rights.
5. Eligibility. Nonstatutory Stock Options and Stock Purchase Rights may
be granted to Employees and Consultants. Incentive Stock Options may be granted
only to Employees. If otherwise eligible, an Employee or Consultant who has
been granted an Option or Stock Purchase Right may be granted additional
Options or Stock Purchase Rights.
6. Limitations.
(a) Each Option shall be designated in the Notice of Grant as either
an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designations, to the extent that the aggregate Fair Market
Value of Shares subject to an Optionee's incentive stock options granted by the
Company, any Parent or Subsidiary, which become exercisable for the first time
during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 6(a), incentive stock
options shall be taken into account in the order in which they were granted,
and the Fair Market Value of the Shares shall be determined as of the time of
grant.
(b) neither the Plan or any Option or Stock Purchase Right shall
confer upon an Optionee any right with respect to continuing the Optionee's
employment or consulting relationship with the Company, nor shall they
interfere in any way with the Optionee's right or the Company's right to
terminate such employment or consulting relationship at any time, with or
without cause.
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<PAGE> 7
(c) No Employee shall be granted, in any fiscal year of the Company,
Options to purchase more than 100,000 Shares; provided that a new employee of
the Company may be granted in a single fiscal year upon joining the Company
Options to purchase 200,000 Shares.
(d) The foregoing limitation shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 13.
(e) If an Option is canceled in the same fiscal year of the Company
it was granted (other than in connection with a transaction described in
Section 13), the canceled Option will be counted against the limit set forth in
Section 6(c). For this purpose, if the exercise price of an Option is reduced,
the transaction will be treated as a cancellation of the Option and the grant
of a new Option.
(f) All Options granted under the Plan shall be granted within ten
years from the date of adoption of the Plan by the Board of Directors.
7. Term of Plan. Subject to Section 20 of the Plan, the Plan shall become
effective upon the earlier to occur of its adoption by the Board or its
approval by the stockholders of the Company as described in Section 20 of the
Plan. It shall continue in effect for a term of ten (10) years unless
terminated earlier under Section 16 of the Plan.
8. Term of Option. The term of each Option shall be stated in the Notice
of Grant; provided, however, that in the case of an Incentive Stock Option, the
term shall be ten (10) years from the date of grant or such shorter term as may
be provided in the Notice of Grant. Moreover, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
term of the Incentive Stock Option shall be five (5) years from the date of
grant or such shorter term as may be provided in the Notice of Grant.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the Shares to
be issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive
Stock Option is granted, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.
(B) granted to any Employee, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator.
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(b) Waiting Period and Exercise Dates. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised. In so doing, the Administrator may specify that an
Option may not be exercised until the completion of a service period.
(c) Form of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) delivery of a properly executed exercise notice together
with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the exercise price;
(iv) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's participation
in any Company-sponsored deferred compensation program or arrangement;
(v) any combination of the foregoing methods of payment; of
(vi) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option
granted hereunder shall be exercisable according to the terms of the Plan and
at such times and under such conditions as determined by the Administrator and
set forth in the Option Agreement.
An Option may not be exercised for a fraction of a Share unless
in connection with the entire exercise of an Option.
An Option shall be deemed exercised when the Company receives:
(i) written notice of exercise (in accordance with the Option Agreement) from
the person entitled to exercise the Option, and (ii) full payment for the
Shares with respect to which the Option is exercised. Full payment may consist
of any consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the stock
certificate evidencing such Shares is issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
stockholder
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shall exist with respect to the Optioned Stock, notwithstanding the exercise of
the Option. The Company shall issue (or cause to be issued) such stock
certificate promptly after the Option is exercised. No adjustment will be made
for a dividend or other right for which the record date is prior to the date
the stock certificate is issued, except as provided in Section 13 of the Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship. Upon
termination of an Optionee's Continuous Status as an Employee or Continuous
Status as a Consultant, as the case may be, other than upon the Optionee's
death or Disability, the Optionee may exercise his or her Option, but only
within such period of time as is specified in the Notice of Grant, and except
in the case of a Nonstatutory Stock Option where the Option Agreement provides
otherwise, only to the extent that the Optionee was entitled to exercise it at
the date of termination (but in no event later than the expiration of the term
of such Option as set forth in the Notice of Grant). In the absence of a
specified time in the Notice of Grant, the Option shall remain exercisable for
ninety (90) days following the Optionee's termination of Continuous Status as
an Employee or Continuous Status as a Consultant, as the case may be. In the
case of an Incentive Stock Option, such period of time shall not exceed ninety
(90) days from the date of termination. If, at the date of termination, the
Optionee is not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall revert to the Plan,
except in the case of a Nonstatutory Stock Option where the Option Agreement
provides otherwise. If, after termination, the Optionee does not exercise his
or her Option within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. In the event that an Optionee's
Continuous Status as an Employee or Continuous Status as Consultant terminates
as a result of the Optionee's Disability, the Optionee may exercise his or her
Option at any time within twelve (12) months from the date of such termination,
except in the case of a Nonstatutory Stock Option where the Option agreement
provides otherwise, but only to the extent that the Optionee was entitled to
exercise it at the date of such termination (but in no event later than the
expiration of the term of such Option as set forth in the Notice of Grant). If,
at the date of termination, the Optionee is not entitled to exercise his or her
entire Option, the Shares covered by the unexercisable portion of the Option
shall revert to the Plan. If, after termination, the Optionee does not exercise
his or her Option within the time specified herein, the Option shall terminate,
and the shares covered by such Option shall revert to the Plan.
(b) Death of Optionee. In the event of the death of an Optionee,
the Option may be exercised at any time within twelve (12) months following the
date of death (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
except in the case of a Nonstatutory Stock Option where the Option agreement
provides otherwise, but only to the extent that the Optionee was entitled to
exercise the Option at the date of death. If, at the time of death, the
Optionee was not entitled to exercise his or her entire Option, the Shares
covered by the unexercisable portion of the Option shall immediately revert to
the Plan. If, after death, the Optionee's estate or a person who acquired the
right to exercise the Option by bequest or inheritance
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<PAGE> 10
does not exercise the Option within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(i) Rule 16b-3. Options granted to individuals subject to Section 16
of the Exchange Act ("Insiders") must comply with the applicable provisions of
Rule 16b-3 and shall contain such additional conditions or restrictions as may
be required thereunder to qualify for the maximum exemption from Section 16 of
the Exchange Act with respect to Plan transactions.
(ii) Notwithstanding any other provision of the Plan, no Insider may
exercise any portion of an Option during the first six months following the
grant of such Option, except that this limitation shall not apply (i) if such
Option was granted by a 16b-3 Committee or (ii) in the event of the Insider's
death or Disability during such six-month period.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing, by means of a Notice of Grant, of the terms, conditions and
restrictions related to the offer, including the number of Shares that the
offeree shall be entitled to purchase, the price to be paid, and the time
within which the offeree must accept such offer, which shall in no event exceed
six (6) months from the date upon which the Administrator made the
determination to grant the Stock Purchase Right. The offer shall be accepted by
execution of a Restricted Stock Purchase Agreement in the form determined by
the Administrator.
(b) Repurchase Option. Unless the Administrator determines
otherwise, the Restricted Stock Purchase Agreement shall grant the Company a
repurchase option exercisable upon the voluntary or involuntary termination of
the purchaser's employment with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock purchase agreement shall be the original price paid by the
purchaser and may be paid by cancellation of any indebtedness of the purchaser
to the Company. The repurchase option shall lapse at a rate determined by the
Administrator.
(c) Rule 16b-3. Stock Purchase Rights granted to Insiders, and
Shares purchased by Insiders in connection with Stock Purchase Rights, shall be
subject to any restrictions applicable thereto in compliance with Rule 16b-3.
An Insider may only purchase Shares pursuant to the grant of a Stock Purchase
Right, and may only sell Shares purchased pursuant to the grant of a Stock
Purchase Right, during such time or times as are permitted by Rule 16b-3.
(d) Other Provisions. The Restricted Stock Purchase Agreement shall
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion. In
addition, the provisions of Restricted Stock Purchase Agreements need not be
the same with respect to each purchaser.
(e) Rights as a Stockholder. Once the Stock Purchase Right is
exercised, the purchaser shall have the rights equivalent to those of a
stockholder, and shall be a stockholder when his or her purchase is entered
upon the records of the duly authorized transfer agent of the
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<PAGE> 11
Company. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the Stock Purchase Right is exercised, except
as provided in Section 13 of the Plan.
12. Non-Transferability of Options and Stock Purchase Rights. An Option
or Stock Purchase Right may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
13. Withholding Tax.
Upon (i) the disposition of shares of Common Stock acquired pursuant
to the exercise of an Incentive Stock Option granted pursuant to the Plan
within two years of the granting of the Incentive Stock Option or within one
year after exercise of the Incentive Stock Option, or (ii) the exercise of a
Nonstatutory Stock Option the Company shall have the right to require such
employee or other person, and such employee or other person by accepting the
Options granted under the Plan agrees, to pay the Company the amount of any
taxes which the Company may be required to withhold with respect thereto. In
the event of (i) or (ii), then such employee or other person may elect to pay
the amount of any taxes which the Company may be required to withhold by
delivering to the Company shares of the Company's Common Stock having a Fair
Market Value determined equal to the withholding tax obligation determined by
the Company. Such Shares so delivered may be either Shares withheld by the
Company upon the exercise of the Option or other Shares. Such election shall
comply with all applicable laws (including without limitation, state, corporate
and federal requirements.
14. Adjustments Upon Changes in Capitalization Dissolution, Merger, Asset
Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an Option
or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option or
Stock Purchase Right has not been
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previously exercised, it will terminate immediately prior to the consummation
of such proposed action. The Board may, in the exercise of its sole discretion
in such instances, declare that any Option or Stock Purchase Right shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his or her Option or Stock Purchase Right as to all or any part of the
Optioned Stock, including Shares as to which the Option or Stock Purchase Right
would not otherwise be exercisable.
(c) Merger or Asset Sale. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the
assets of the Company, each outstanding Option and Stock Purchase Right shall
be assumed or an equivalent option or right shall be substituted by the
successor corporation or a Parent or Subsidiary of the successor corporation.
The Administrator may, in lieu of such assumption or substitution, provide for
the Optionees to have the right to exercise the Option or Stock Purchase Right
as to all or a portion of the Optioned Stock, including Shares as to which it
would not otherwise be exercisable. If the Administrator makes an Option or
Stock Purchase Right exercisable in lieu of assumption or substitution in the
event of a merger or sale of assets, the Administrator shall notify the
Optionee that the Option or Stock Purchase Right shall be fully exercisable for
a period of fifteen (15) days from the date of such notice, and the Option or
Stock Purchase Right will terminate upon the expiration of such period. For the
purposes of this paragraph, the Option or Stock Purchase Right shall be
considered assumed if, following the merger or sale of assets, the option or
right confers the right to purchase, for each Share of Optioned Stock subject
to the Option or Stock Purchase Right immediately prior to the merger or sale
of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of Common Stock
for each Share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding Shares); provided, however, that if
such consideration received in the merger or sale of assets was not solely
common stock of the successor corporation or its Parent, the Administrator may,
with the consent of the successor corporation, provide for the consideration to
be received upon the exercise of the Option or Stock Purchase Right, for each
Share of Optioned Stock subject to the Option or Stock Purchase Right, to be
solely common stock of the successor corporation or its Parent equal in fair
market value to the per share consideration received by holders of Common Stock
in the merger or sale of assets.
15. Date of Grant. The date of grant of an Option or Stock Purchase
Right shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or such other later
date as is determined by the Administrator. Notice of the determination shall
be provided to each Optionee within a reasonable time after the date of such
grant.
16. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend or terminate the Plan. No amendments, alteration,
suspension or termination may adversely affect any outstanding option without
the written consent of the Optionee.
(b) Stockholder Approval. The Company shall obtain
stockholder approval of any Plan amendment to the extent necessary and
desirable to comply with Section 422 of the Code (or any successor rule or
statute or other applicable law, rule or regulation, including the requirements
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<PAGE> 13
of any exchange or quotation system on which the Common stock is listed or
quoted). Such stockholder approval, if required, shall be obtained in such a
manner and to such a degree as is required by the applicable law, rule or
regulation.
(c) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
whether contained herein or in any option agreement, unless mutually agreed
otherwise between the Optionee and the Administrator, which agreement must be in
writing and signed by the Optionee and the Company.
17. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the
exercise of an Option or Stock Purchase Right unless the exercise of such
Option or Stock Purchase Right and the issuance and delivery of such Shares
shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder. Applicable Laws, and the requirements
of any stock exchange or quotation system upon which the Shares may then be
listed or quoted, and shall be further subject to the approval of counsel for
the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option or Stock Purchase Right, the Company may require the person exercising
such Option or Stock Purchase Right to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required.
18. Liability of Company.
(a) Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall have not been obtained.
(b) Grants Exceeding Allotted Shares. If the Optioned Stock covered
by an Option or Stock Purchase Right exceeds, as of the date of grant, the
number of Shares which may be issued under the Plan without additional
stockholder approval, such Option or Stock Purchase Right shall be void with
respect to such excess Optioned Stock, unless stockholder approval of an
amendment sufficiently increasing the number of Shares subject to the Plan is
timely obtained in accordance with Section 16(b) of the Plan.
19. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
20. Stockholder Approval. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months after the
date the Plan is adopted. Such
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stockholder approval shall be obtained in the manner and to the degree required
under applicable federal and state law.
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Exhibit 5.1
[LETTERHEAD OF LATHAM & WATKINS]
July 2, 1999
Women First HealthCare, Inc.
12220 El Camino Real, Suite 400
San Diego, CA 92130
Re: Form S-8 Registration Statement
2,277,435 Shares of Common Stock
Ladies and Gentlemen:
In connection with the registration by Women First HealthCare,
Inc., a Delaware corporation (the "Registrant"), of an aggregate of 2,277,435
shares of common stock, par value $0.001 per share (the "Shares"), of the
Registrant to be issued pursuant to the Women First HealthCare, Inc. 1998
Long-Term Incentive Plan (the "1998 Plan") and the Women First HealthCare, Inc.
Incentive Stock Plan (the "Incentive Stock Plan," and together with the 1998
Plan, the "Plans") under the Securities Act of 1933, as amended (the "Act"), on
a Registration Statement on Form S-8 filed with the Securities and Exchange
Commission on July 2, 1999 (as amended from time to time, the "Registration
Statement"), you have requested our opinion with respect to the matters set
forth below.
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Registrant in connection with the authorization, issuance and sale
of the Shares. In addition, we have made such legal and factual examinations and
inquiries, including an examination of originals or copies certified or
otherwise identified to our satisfaction of such documents, corporate records
and instruments, as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
<PAGE> 2
LATHAM & WATKINS
Women First HealthCare, Inc.
July 2, 1999
Page 2
We are opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware,
including statutory and reported decisional law thereunder, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of any
other laws.
Subject to the foregoing, it is our opinion that as of the
date hereof the Shares have been duly authorized, and, upon the issuance of the
Shares in accordance with the terms set forth in the Plans, the Shares will be
validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1998 Long-Term Incentive Plan and the Incentive
Stock Plan of Women First HealthCare, Inc. of our report dated March 11, 1999,
with respect to the consolidated financial statements of Women First
HealthCare, Inc. included in its Registration Statement No. 333-74367 on Form
S-1, filed with the Securities & Exchange Commission.
/s/ Ernst & Young LLP
San Diego, California
July 1, 1999
