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As filed with the Securities and Exchange Commission on April 7, 2000
Registration No. _________
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, CA 92130
(858) 509-1171
(Address of principal executive offices, including zip code,
and telephone number)
1999 NON-QUALIFIED STOCK OPTION PLAN OF WOMEN FIRST HEALTHCARE, INC.
(Full title of the plans)
DAVID F. HALE Copies to:
PRESIDENT AND CHIEF EXECUTIVE OFFICER ROBERT E. BURWELL, ESQ.
WOMEN FIRST HEALTHCARE, INC. LATHAM & WATKINS
12220 EL CAMINO REAL, SUITE 400 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92130 SAN DIEGO, CALIFORNIA 92101
(858) 509-1171 (619) 236-1234
(Name, address, including zip
code, and telephone number,
including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
To be Registered Registered Per Share Price Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 250,000(1)(2) $3.625(3) $906,250(3) $239.25
=============================================================================================================
</TABLE>
(1)A maximum of 250,000 shares of Common Stock are reserved for issuance under
the 1999 Non-Qualified Stock Option Plan (the "1999 Plan"). Of the 250,000
shares of Common Stock reserved for issuance under the 1999 Plan, no shares
have been issued upon exercise of options. Accordingly, all of such shares
are being registered hereunder.
(2)Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of Common Stock that become issuable under the 1999 Plan by
reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without receipt of consideration that increases the
number of the Company's outstanding shares of Common Stock.
(3)This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee. The price per share and aggregate offering
price are based upon the average of the high and low sales prices of the
registrant's common stock on April 6, 2000, as reported on the Nasdaq
National Market, for shares issuable upon exercise of options not yet granted
under the 1999 Plan. To date, no options have been granted under the 1999
Plan.
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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.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by Women First HealthCare, Inc., a
Delaware corporation (the "Company"), are hereby incorporated by reference in
this Registration Statement:
(a) The Annual Report on Form 10-K for the year ended December 31,
1999 filed pursuant to the Exchange Act on March 30, 2000; and
(b) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on June 24,
1999, pursuant to Section 12(g) of the Exchange Act.
All documents filed by the Company 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.
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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 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, 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 and 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 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 Company 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company
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 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 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 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 San Diego, State of California, on April 7, 2000.
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 hereby constitutes and appoints David F. Hale his true and lawful
attorney-in-fact, acting alone, 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
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
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
--------- ----- ----
<S> <C> <C>
/s/ EDWARD F. CALESA Chairman of the Board and Director April 7, 2000
- ------------------------------------
Edward F. Calesa
/s/ DAVID F. HALE President and Chief Executive April 7, 2000
- ------------------------------------ Officer (Principal Executive
David F. Hale Officer)
/s/ DEBRA P. CRAWFORD Vice President, Chief Financial April 7, 2000
- ------------------------------------ Officer, Treasurer and Secretary
Debra P. Crawford (Principal Financial Officer and
Principal Accounting Officer)
/s/ MEREDITH A. BROKAW Director April 7, 2000
- ------------------------------------
Meredith A. Brokaw
/s/ GARY V. PARLIN Director April 7, 2000
- ------------------------------------
Gary V. Parlin
/s/ RICHARD L. RUBIN Director April 7, 2000
- ------------------------------------
Richard L. Rubin
/s/ JOHN SIMON Director April 7, 2000
- ------------------------------------
John Simon
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
4.1 The 1999 Non-Qualified Stock Option Plan of Women First HealthCare,
Inc. (incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 (File No. 000-26487)
filed with the Commission on March 30, 2000).
5.1 Opinion of Latham & Watkins.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page hereto).
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EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
April 7, 2000
Women First HealthCare, Inc.
12220 El Camino Real, Suite 400
San Diego, California 92130
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
In connection with the registration by Women First HealthCare, a
Delaware corporation (the "Company"), of 250,000 shares of common stock, par
value $.001 per share (the "Shares"), of the Company to be issued pursuant to
the 1999 Non-Qualified Stock Option Plan of Women First HealthCare, Inc. (the
"1999 Plan") 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 April 7, 2000 (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 Company 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.
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Women First HealthCare, Inc.
April 7, 2000
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,
or as to any matters of municipal law or the law of any other local agencies
within the state.
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 and
payment for the Shares in accordance with the terms set forth in the 1999 Plan,
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
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference therein in the Registration
Statement (Form S-8) pertaining to the 1999 Non-Qualified Stock Option Plan of
Women First HealthCare, Inc. of our report dated February 18, 2000, with
respect to the consolidated financial statements of Women First HealthCare,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1999, filed with the Securities and Exchange Commission.
/s/ RAY DITTAMORE
--------------------------------------
ERNST & YOUNG LLP
San Diego, California
April 6, 2000
