<PAGE> 1
As filed with the Securities and Exchange Commission on January 26, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
United Therapeutics Corporation
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 52-1984749
- ---------------------------- -------------------
(State or Other Jurisdiction (IRS Employer
of Incorporation) Identification No.)
1110 Spring Street
Silver Spring, MD 20910
(301) 608-9292
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(Address of Principal Executive Offices,
Including Zip Code)
Amended and Restated Equity Incentive Plan
(As Amended Through June 11, 1999)
and
Employee Non-Qualified Stock Options
-------------------------------------------
(Full Title of the Plans)
Martine A. Rothblatt, Chairman and Chief Executive Officer
United Therapeutics Corporation
1110 Spring Street
Silver Spring, MD 20910
(301) 608-9292
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies of all correspondence to:
LaDawn Naegle, Esq.
Bryan Cave LLP
700 13th Street, NW, Suite 700
Washington, DC 20005-3960
(202) 508-6000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Proposed Proposed Amount
Class of Securities Amount Maximum Maximum of
To Be To Be Offering Price Aggregate Registration
Registered Registered(1) Per Unit Offering Price Fee
- --------------------- --------------------- ---------------- -------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 13,733,373 75.09(2) $1,031,238,979.00 $272,247.09
Common Stock par
value $.01 per share 1,306,144 (3) 20,879,141.00 5,512.09
- -------------------------------------------------------------------------------------------------
Total fee $277,759.18
</TABLE>
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(1) Includes such additional indeterminate number of shares as may be issuable
pursuant to the anti-dilution provisions of the Plans. Includes 13,590,526
shares issuable pursuant to the Amended and Restated Equity Incentive Plan,
1,348,991 shares subject to options issued pursuant to the Plan and 100,000
shares issuable pursuant to an agreement between the Registrant and an
employee.
(2) Estimated solely for the purposes of determining the registration fee
pursuant to Rule 457(c), based upon the average of the closing bid and ask
prices for the Common Stock on January 19, 2000, as reported by the Nasdaq
National Market.
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h), based on the actual exercise prices of currently
outstanding options issued pursuant to the plan covering 1,306,144 shares.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by United
Therapeutics Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated herein by reference and made a
part hereof:
(1) 424(b) Prospectus relating to Registration Statement on Form S-1
(Registration No. 333-93853), dated January 18, 2000.
(2) Quarterly Reports on Form 10-Q for the periods ended June 30, 1999
and September 30, 1999.
(3) The description of the Company's Common Stock contained in
Post-Effective Amendment No. 1 to Registration Statement on Form
S-1 (Registration No. 333-76409), filed June 17, 1999, and
Registration Statement on Form 8-A (Registration No. 333-76409),
filed June 8, 1999, including any amendment filed for the purposes
of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof shall hereby be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 incorporated or
deemed to be incorporated herein by reference modifies or supersedes such
statement. Any statement contained herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document incorporated or deemed to
be incorporated herein by reference 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.
None.
Item 6. Indemnification of Directors and Officers.
As permitted by Delaware law, the Company's Amended and Restated
Certificate of Incorporation provides that no director of the Company will be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (a) for any breach
of duty of loyalty to United Therapeutics or to its stockholders, (b) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the Delaware General
Corporation Law, or (d) for any transaction from which the director derived an
improper personal benefit.
The Company's Amended and Restated Certificate of Incorporation further
provides that the Company must indemnify its directors and executive officers
and may indemnify its other officers and employees and agents to the fullest
extent permitted by Delaware law. The Company believes that indemnification
under its Amended and Restated Certificate of Incorporation covers negligence
and gross negligence on the part of indemnified parties.
The Company has entered into indemnification agreements with each of its
directors and officers. These agreements, among other things, require the
Company to indemnify such directors and officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by any such
person in any action or proceeding, including any action by or in the right of
the Company, arising out of such person's services as a director or officer of
the Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
No. Description
4.1 Reference is made to the Amended and Restated Certificate of
Incorporation of the Registrant, incorporated by reference to
Exhibit 3.1 of the Registrant's Registration Statement on Form
S-1 (Registration No. 333-76409), and the Amended and Restated
By-Laws of the Registrant, incorporated by reference to Exhibit
3.2 of the Registrant's Registration Statement on Form S-1
(Registration No. 333-76409).
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4.2 Registration Rights Agreement, dated as of October 30, 1998, by
and among the Registrant, Merrill Lynch KECALP L.P. 1997, and
Merrill Lynch KECALP International L.P. 1997, incorporated by
reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form S-1 (Registration No. 333-76409).
4.3 Form of Common Stock Purchase Agreement, executed as of March
1998, by and between the Registrant and each of Community
Investment Partners III L.P., LLLP, Mary Ellen and Raul Evelio
Perez, Trustees of the Mary Ellen Perez revocable trust dated
October 28, 1993, Edward D. Jones & Co., Oakwood Investors I,
L.L.C. and James L. Nouss, Jr., incorporated by reference to
Exhibit 4.3 of the Registrant's Registration Statement on form
S-1 (Registration No. 333-76409).
4.4 Warrant to purchase shares of United Therapeutics common stock,
issued on November 2, 1998 to Cortech, Inc., incorporated by
reference to Exhibit 4.4 of the Registrant's Registration
Statement on form S-1 (Registration No. 333-76409).
4.5 Stock Option Grant to purchase shares of United Therapeutics'
common stock, issued on September 16, 1998, to Toray Industries,
Inc., incorporated by reference to Exhibit 4.5 of the
Registrant's Registration Statement on form S-1 (Registration No.
333-76409).
4.6 Registration Rights Agreement, dated as of October 7, 1999, by
and among the Registrant and Robert M. Moriarty, Ph.D., Raju
Penmasta, Ph.D., Lian Guo, Ph.D., George W. Davis, Esq. and David
Moriarty, incorporated by reference to Exhibit 10.2 of the
Registrant's Form 10-Q for the period ended September 30, 1999.
4.7 Form of Purchase Agreement dated as of December 22, 1999,
incorporated by reference to Exhibit 4.7 of the Registrant's
Registration Statement on Form S-1 (Registration No. 333-93853).
5 Opinion of Bryan Cave LLP
23.1 Consent of KPMG LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5 hereto)
24 Power of Attorney (included on signature page)
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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;
(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) 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the 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 15(d) of the
Securities 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 that 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 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
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Securities and Exchange Commission such indemnification is against public policy
as expressed in the 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 of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 9
SIGNATURES
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 Silver Spring, State of Maryland, on January 24,
2000.
UNITED THERAPEUTICS CORPORATION
By: /s/ Martine A. Rothblatt
-------------------------------
Martine A. Rothblatt
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated. Each of such persons appoints Martine
A. Rothblatt with full power to act, his true and lawful attorney-in-fact and
agent of him and on his behalf and in his name, place and stead, and in any and
all capacities, with full and several power of substitution, to sign and file
with the proper authorities any and all documents in connection with the
Registration Statement on Form S-8, filed with the Securities and Exchange
Commission on January 26, 2000, granting unto said attorney, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises in order to effectuate the same as fully to
all intents and purposes as he might or could do if personally present, hereby
ratifying and confirming all that said attorney-in-fact and agent, may lawfully
do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Martine A. Rothblatt Chairman of the Board and Chief
- ----------------------------- Executive Officer January 24, 2000
Martine A. Rothblatt
/s/ James W. Crow President, Chief Operating Officer and
- ----------------------------- Director January 24, 2000
James W. Crow
/s/ Gilles Cloutier Chief Financial Officer, Chief
- ----------------------------- Accounting Officer, Executive Vice
Gilles Cloutier President, Treasurer and Director January 24, 2000
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Shelmer D. Blackburn, Jr. Vice President of Operations,
- ----------------------------- Secretary and Director January 24, 2000
Shelmer D. Blackburn, Jr.
/s/ Jean Guy-Lambert Director January 24, 2000
- -----------------------------
Jean Guy-Lambert
/s/ Noah A. Samara Director January 24, 2000
- -----------------------------
Noah A. Samara
/s/ David Gooray Director January 24, 2000
- -----------------------------
David Gooray
/s/ Olivia Giscard d'Estaing Director January 24, 2000
- -----------------------------
Olivia Giscard d'Estaing
</TABLE>
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EXHIBIT 5
<TABLE>
<S> <C> <C>
BRYAN CAVE LLP
ST. LOUIS, MISSOURI LONDON, ENGLAND
NEW YORK, NEW YORK 700 THIRTEENTH STREET, N. W. RIYADH, SAUDI ARABIA
KANSAS CITY, MISSOURI WASHINGTON, D. C. 20005-3960 KUWAIT CITY, KUWAIT
OVERLAND PARK, KANSAS (202) 508-6000 ABU DHABI, UNITED ARAB EMIRATES
PHOENIX, ARIZONA DUBAI, UNITED ARAB EMIRATES
LOS ANGELES, CALIFORNIA FACSIMILE: (202) 508-6200 HONG KONG
SANTA MONICA, CALIFORNIA ASSOCIATED OFFICE IN SHANGHAI
IRVINE, CALIFORNIA
</TABLE>
January 26, 2000
United Therapeutics Corporation
1110 Spring Street
Silver Spring, MD 20910
Ladies and Gentlemen:
We have acted as counsel to United Therapeutics Corporation (the
"Company") in connection with the registration on Form S-8 under the Securities
Act of 1933, as amended, by the Company of a total of 15,039,517 shares (the
"Shares") of the Company's common stock, $.01 par value per share, issuable by
the Company upon the exercise of options and awards granted pursuant to the
Amended and Restated Equity Incentive Plan, as amended through June 11, 1999,
and granted to an employee, Wayne Roe, on October 27, 1999 (the "Plans").
In connection herewith, we have examined and relied as to matters
of fact upon such certificates of public officials, such certificates of
officers of the Company and originals or copies certified to our satisfaction of
the Certificate of Incorporation and Bylaws of the Company, as amended, the
Plans, proceedings of the Board of Directors of the Company and other corporate
records, documents, certificates and instruments as we have deemed necessary or
appropriate in order to enable us to render the opinion expressed below.
In rendering the following opinion, we have assumed the
genuineness of all signatures on all documents examined by us, the authenticity
of all documents submitted to us as originals and the conformity to authentic
originals of all documents submitted to us as certified or photostatted copies.
In addition, we have assumed that the certificates for the Shares to be issued
will conform to the specimen thereof examined by us and will be duly registered
and countersigned by the Company's transfer agent.
Based on the foregoing and in reliance thereon, we are of the
opinion that the shares have been duly and validly authorized for issuance and,
when issued, delivered and paid for in accordance with the terms and conditions
of the Plans, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to
the aforesaid registration statement on Form S-8.
Sincerely,
/s/ Bryan Cave LLP
Bryan Cave LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
United Therapeutics Corporation
We consent to incorporation by reference in the registration statement (No.
333-xxxx) on Form S-8 of United Therapeutics Corporation of our report dated
April 2, 1999, except for Note 12, which is as of June 11, 1999, relating to the
consolidated balance sheets of United Therapeutics Corporation and subsidiaries
as of December 31, 1997, and 1998, and the related consolidated statements of
operations, stockholders' equity, and cash flows for the period from inception
(June 26, 1996) to December 31, 1996 and the years ended December 31, 1997 and
1998, and all related schedules, which report appears in the 424-b Prospectus
relating to Registration Statement on Form S-1 (Registration No. 333-93853),
date January 18, 2000, of United Therapeutics Corporation.
/s/ KPMG LLP
KPMG LLP
McClean, Virginia
January 24, 2000
