As filed with the Securities and Exchange Commission
on May 27, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Exchange Act of 1933
CIRCA PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
New York 11-1966265
(State of incorporation) (I.R.S. Employer
Identification No.)
33 Ralph Avenue, Copiague, New York 11726
(Address of Principal Executive Offices)
CIRCA PHARMACEUTICALS, INC. 1990 DIRECTORS'
STOCK OPTION PLAN
(Full Title of Plan)
MELVIN SHAROKY, MD
(President and Chief Executive Officer)
CIRCA PHARMACEUTICALS, INC.
33 Ralph Avenue
Copiague, New York 11726
(516) 842-8383
(Name, address including zip code and telephone
number, including area code, of agent for service)
Copy to:
Alan M. Rashes, Esq.
SALON, MARROW & DYCKMAN
685 Third Avenue
New York, New York 10017
(212)661-7100
Approximate date of proposed commencement of sales pursuant to
the plan:
As soon as practicable after the effective date of this
Registration Statement.
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price1 Fee
Common Stock, 500,000 $10.00 $5,000,000 $1,724.14
$.01 par value shares
<PAGE>
CIRCA PHARMACEUTICALS, INC.
Cross Reference Sheet Pursuant to Rule SK-501(b) Between
Registration
Statement (Form S-8) and Section 10(a) Prospectus
Item Number and Caption Heading in Prospectus
1a.General Plan Information Front Cover Page, Prospectus
Summary, Business Section
1b.Securities to be Offered Front Cover Page
1c.Employees Who May Eligibility and Participation
Participate
1d.Purchase of Securities Securities Covered by this
Pursuant to the Plan Prospectus
and Paymet for
Securities Offered
1e.Resale Restrictions Not Applicable
1f.Tax Effects of Plan Effect of Federal Income Taxation
Participation
1g.Investment of Funds Not Applicable
1h.Withdrawal from the Plan: Not Applicable
Assignment of Interest
1i.Forfeitures and Penalties Forfeitures and Penalties
1j.Changes and Deductions Not Applicable
and Liens Therefor
2. Information with Respect Available Information; The Company
to the Registrant
3. Incorporation of Certain Documents Incorporated by
Information by Reference Reference
4. Description of Securities Securities Covered by Prospectus,
Part II
5. Interests of Named Part II
Experts and Counsel
6. Indemnification of Indemnification of Directors
Directors and Officers and Officers, Part II
7. Exemption from Registration Part II
Claimed
8. Exhibits Part II
9. Undertakings Part II<PAGE>
CIRCA PHARMACEUTICALS, INC.
Cross Reference Sheet Showing Location in Prospectus of
Information Required by Items of Form S-3
Form S-3 Item and Heading Location in Prospectus
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus Front Cover Page
2. Inside Front and Outside Back
Cover Pages of Prospectus Inside Front Cover Page
3. Summary Information, Risk Factors
and Ratio of Earnings to Fixed
Charges The Company
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities
to be Registered Not Applicable
10.Interest of Named Experts
and Counsel Legal Matters
11.Material Changes Not Applicable
12.Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
13.Disclosure of Commission Position Indemnification of
on Indemnification for Securities Directors and Officers
Act Liabilities<PAGE>
RE-OFFER PROSPECTUS
CIRCA PHARMACEUTICALS, INC.
500,000 SHARES
COMMON STOCK
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This Prospectus relates to the offering of 500,000 shares of
Common Stock to directors of Circa Pharmaceuticals, Inc., a New
York company, (the "Company") as described in the Circa
Pharmaceuticals, Inc. 1990 Directors' Stock Option Plan (the
"Plan").
This Prospectus also relates to offers and sales by certain
directors (the "Selling Stockholders") of the Company, who may be
deemed "affiliates" of the Company as defined in Rule 405 under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company that have been or may be acquired by such person
upon the exercise of stock options granted to them pursuant to
the Plan. The shares that may be so acquired by such persons
pursuant to the Plan are herein referred to as "Option Shares".
The Option Shares may be offered hereby from time to time by
any and all of the Selling Stockholders for their own benefit.
The Company will not receive any of the proceeds from the
sale by the Selling Stockholders of the Common Stock, except to
the extent that the Selling Stockholders exercise options to
purchase Common Stock from the Company.
The Company has agreed to bear all expenses (other than
stock transfer taxes, brokerage commissions and other selling
expenses) in connection with the registration and sale of the
Common Stock.
The Company's Common Stock is traded on the AMEX under the
symbol of RXC. On May 26, 1994 the closing price for the
Company's Common Stock was $10.00 per share as reported by the
American Stock Exchange.
The date of this Prospectus is May 27, 1994.
No dealer, sales representative or any other person has been
authorized to give any information or to make any representations
in connection with this offering other than those contained in
this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized
by the Company, any Selling Stockholder or any Underwriter. This
Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy any securities other than the
registered securities to which it relates or an offer to, or a
solicitation of, any person in any jurisdiction where such an
offer or solicitation would be unlawful. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time
subsequent to the date hereof.
Page
Available Information. . . . . . . . . . . . . . . . . . . . 3
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . 3
The Company. . . . . . . . . . . . . . . . . . . . . . . . . 4
Circa Pharmaceuticals, Inc. 1990 Directors' Stock. . . . . .
Option Plan . . . . . . . . . . . . . . . . . . . . . . . . 5
Effects of Federal Income Taxation . . . . . . . . . . . . . 8
Selling Stockholders . . . . . . . . . . . . . . . . . . . . 9
Plan of Distribution . . . . . . . . . . . . . . . . . . . . 9
Documents Incorporated by Reference. . . . . . . . . . . . . 10
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . 10
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indemnification of Directors and Officers. . . . . . . . . . 11
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange
Commission (the "Commission"), a registration statement on Form S-8
together with all amendments (the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Common Stock described in this Prospectus and of
which this Prospectus forms a part. Such Registration Statement
and the exhibits thereto can be inspected and copied at the Public
Reference Room of the Commission, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549.
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other
information with the Commission. Such reports, proxy statements
and other information filed by the Company with the Commission can
be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's Regional Offices
located at 7 World Trade Center, New York, New York 10048; and Room
3190, Kluczynski Federal Building, 230 South Dearborn Street,
Chicago, Illinois 60604. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Statements herein concerning the contents of any contract or
other document are not necessarily complete, and in each instance
reference is made to such contract or other document filed with the
Commission as an exhibit to the Registration Statement, or
otherwise, each such statement being qualified and amplified in all
respects by such reference.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by
reference to the more detailed information appearing elsewhere in
this Prospectus.
The Plan is based upon the Company's belief that stock
ownership by directors benefits the stockholders by affording an
eligible director of the Company an opportunity to acquire or
increase his proprietary interest in the Company, and thereby to
encourage his continued service as a director and to provide him
additional incentive to achieve the growth objectives of the
Company.
<PAGE>
THE COMPANY
Circa Pharmaceuticals, Inc. ("Circa" or the "Company",
formerly known as Bolar Pharmaceutical Co., Inc.) was organized
under the laws of the State of New York in 1960 and together with
its wholly owned subsidiaries, is traded on the American Stock
Exchange (symbol RXC). The Company has historically been engaged
in developing manufacturing and marketing solid dosage form
pharmaceuticals, including prescription and over-the-counter
("OTC") products.
In February 1990, as a result of an investigation by the Food
& Drug Administration ("FDA") the Company ceased manufacturing and
marketing all pharmaceutical products and was restricted by the FDA
from obtaining scientific review of its applications. In April
1993, following the completion of a comprehensive three year
rehabilitation program, the FDA notified Circa that all regulatory
restrictions were lifted and that it was in compliance with "Good
Manufacturing Practices" ("GMP") and able to, once again, operate
under the standard framework of the FDA.
The Company currently manufactures several OTC products and is
also a distributor of a nitroglycerin transdermal system manufac-
tured by Hercon Laboratories Corporation. During 1993, following
FDA approval of its facilities, Circa began to pursue contract
manufacturing and packaging for pharmaceutical companies.
The Company employs approximately 100 persons, of which 43 are
engaged in research and development, including product identifi-
cation, market research, product formulation, the development of
methods used to analyze various drugs and regulatory affairs. In
addition, the Company utilizes independent laboratories to conduct
tests and clinical studies, primarily in connection with the
establishment of bioequivalence. The Company is currently develop-
ing certain prescription drug products which have not previously
been approved for proposed use in the United States. These drug
products incorporate chemical entities that have been approved by
the FDA, but are not necessarily the bioequivalent of any existing
brand-name drug. Circa is also developing prescription generic
drugs employing alternative drug delivery systems. Current
research and development is being conducted at both Circa's
Copiague, New York facility and at other companies through joint
venture agreements.
<PAGE>
CIRCA PHARMACEUTICALS, INC. 1990 DIRECTORS'
STOCK OPTION PLAN
General
The Plan was approved by the Company's Board of Directors on
April 30, 1990 and by the Stockholders at the Company's annual
meeting held on December 14, 1990. The Plan was amended as of
December 31, 1992 and on March 24, 1994. See "Securities Covered
By This Prospectus".
The Plan was adopted to provide stock options to directors to
afford eligible directors an opportunity to acquire or increase
their proprietary interest in the Company and thereby encourage
their continued service as a director and to provide them
additional incentive to achieve the growth objectives of the
Company. The Plan, which reserved 500,000 shares for option
grants, expires on April 30, 2000. To date, options for 87,500
shares of Common Stock have been granted under the Plan.
Administration of the Plan
The Board of Directors of the Company (the "Board")
administers the Plan. The Board may at any time and from time to
time amend or modify the plan.
Description of Common Stock
The Company is authorized to issue an aggregate of 70,000,000
shares of Common Stock, $.01 par value. The holders of Common
Stock are entitled to one vote for each share held of record on all
matters to be voted on by Stockholders. All voting is on a
non-cumulative basis. The holders of Common Stock are entitled to
receive such dividends, if any, as may be declared from time to
time by the Board of Directors in its discretion from funds legally
available therefor. Upon liquidation or dissolution of the
Company, the holders of Common Stock are entitled to receive, pro
rata, all assets remaining available for distribution. The Common
Stock has no preemptive or other subscription rights and is not
subject to any future calls or assessments. There are no
conversion rights or redemption or sinking fund provisions
applicable to shares of Common Stock. All of the outstanding
shares of Common Stock are, and the shares of Common Stock offered
hereby will be, when issued and delivered, fully paid and non-
assessable.
Transfer Agent
The Transfer Agent is American Stock Transfer & Trust Company,
40 Wall Street, New York, New York 10005.
Eligibility and Participation
Only eligible directors as defined by the Plan, are eligible
to receive a grant of options under the Plan. An eligible director
("Eligible Director" or "Participant") is defined as a director of
the Company who is not eligible to receive options under any other
plan adopted by the Company.
The Plan was adopted at the Company's Annual Stockholders'
Meeting held on December 14, 1990 and subsequently amended, as of
December 31, 1992 and on March 24, 1994. To date, options for
87,500 shares of common stock have been granted under the Plan.
Securities Covered by this Prospectus
An aggregate of 500,000 shares of Common Stock are reserved
for issuance upon the exercise of options granted under the Plan.
The number of shares reserved for issuance is subject to adjustment
in the event of a stock split, stock dividend, subdivision or
combination of the Common Stock or other changes in corporate
structure affecting the Common Stock. The aforementioned
adjustments and the manner of application shall be determined
solely by the Board of Directors.
Under the Plan, as amended in March 1994, as of the date when
an Eligible Director is initially elected to the Board of Directors
and for each respective fiscal year of the Company on the date on
which the Stockholders re-elect an Eligible Director at the Annual
Meeting of Stockholders, each individual who is then an Eligible
Director will be granted an option to purchase 5,000 shares of
Common Stock. The options will be non-statutory stock options, not
intended to qualify under Section 422 of the Code as Incentive
Stock Options ("ISO's"). The purchase price per share of the
Common Stock deliverable upon exercise of the option shall be one
hundred (100%) percent of the fair market value per share of Common
Stock on the day the option is granted. The fair market value
shall be the closing price per share as reported by the American
Stock Exchange or on a consolidated tape reflecting transactions on
such exchange. Options granted under the Plan are exercisable in
whole or in part at all times during the period beginning one year
from the date of grant, but not as to less than 100 shares of
Stock, unless the remaining shares of stock that are so exercisable
are less than 100 shares of stock. The options granted shall be
for a term of not more than 5 years or until terminated as provided
in the Plan (See "Forfeitures and Penalties"). An option shall be
exercised by written notice of the exercise, specifying the number
of shares of stock being exercised, delivered to the Company at its
principal office, together with a cash payment to the Company, for
the full amount of the option price, for the number of shares for
which the option is exercised. Additionally, prior to the issuance
of a certificate for shares pursuant to any option exercise, the
optionee shall pay to the Company, in cash, the full amount of any
federal and state withholding or other employment taxes applicable
to the taxable income of such optionee resulting from such
exercise.
Forfeitures and Penalties
Any option held under the Plan shall become exercisable in
full on the first anniversary of the date of grant, provided that
the Eligible Director has not voluntarily resigned or been removed
for cause, as a member of the Board of Directors, on or prior to
the first anniversary of the date of grant. Any option granted to
an Eligible Director shall remain exercisable after its exercise
date at all times during the exercise period, regardless of whether
the optionee continues to serve as a member of the Board of
Directors.
Options granted under the Plan are non-transferable otherwise
than by will or the laws of descent and distribution.
Mergers, Sales or Combinations
In the case of a dissolution or liquidation of the Company or
any merger or combination in which the Company is not a surviving
corporation, each outstanding option granted under the Plan shall
terminate. However, the optionees shall have the right,
immediately prior to such dissolution, liquidation, merger or
combination, to exercise his option, in whole or part, to the
extent that it shall not have previously been exercised, without
regard to the date on which such option would otherwise have become
exercisable.
Plan Amendments
The Board of Directors may at any time terminate the Plan, and
may at any time and from time to time amend or modify the Plan.
Term of Plan
The Plan shall terminate on the tenth anniversary of the
Effective Date of the Plan (April 30, 1990).
<PAGE>
EFFECT OF FEDERAL INCOME TAXATION
Under present Federal income tax laws, options granted under
the Plan would have the following tax consequences.
The options granted under the Plan will be non-statutory stock
options not intended to qualify under Section 422 of the Code as
ISO's.
The grant of an option is not a taxable event. When an
optionee exercises an option, the optionee recognizes ordinary
income in the amount of the market value of the stock purchased,
minus any amounts paid for the stock. Such amount will be allowed
as a deduction for Federal income tax purposes to the Company.
When an optionee disposes of shares acquired by the exercise of the
option, any amount received in excess of the market value of the
shares on the date of exercise will be treated as long or short
term capital gain, depending upon the holding period of the shares.
If the amount received is less than the market value of the shares
on the date of exercise, the loss will be treated as long or short-
term capital loss, depending upon the holding period of the shares.
The Plan is not subject to any provisions of ERISA and is not
qualified under Section 401(a) of the Code.
<PAGE>
SELLING STOCKHOLDERS
The Prospectus covers Option Shares that have been or may be
acquired upon exercise of options held by the Selling Stockholders
as of the date of this Registration Statement.
The following table sets forth the name of each Selling
Stockholder, each of whom is a director of the Company, the number
of shares of Common Stock owned by each Selling Stockholder prior
to the offering, and the number of shares and (if one percent or
more) the percentage of the class to be owned by such Selling
Stockholder after the offering assuming the sale of all of the
shares covered hereby.
OPTION SHARES ACQUIRED
SHARES OWNED
SHARES OWNED OR WHICH MAY BE ACQUIRED
AFTER OFFERING
NAME PRIOR TO OFFERING AND OFFERED HEREIN
NUMBER PERCENT
Michael Fedida - 30,000
- *
Bruce Hausman 2,500 30,000
- *
Stanley Grey - 25,000
- *
Kenneth Siegel - 2,500
- *
_______________
*Less than one percent.
PLAN OF DISTRIBUTION
The Selling Shareholders may sell shares of Common Stock in
any of the following ways: (1) through dealers; (ii) through
agents; or (iii) directly to one or more purchasers. The distri-
bution of the shares of Common Stock may be effected from time to
time in one or more transactions (which may involve crosses or
block transactions) on the American Stock Exchange or in the
over-the-counter market. Any such transaction may be effected at
market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices or fixed
prices. The Selling stockholders may effect such transactions by
selling shares of Common Stock to or through broker-dealers, and
such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from Selling Stockholders
and/or commissions from purchasers of shares of Common Stock for
whom they may act as agent. The Selling Stockholders and any
broker-dealers or agents that participate in the distribution of
shares of Common Stock by them might be deemed to be underwriters
and any discounts, commissions or concessions received by any such
broker-dealers or agents might be deemed to be underwriting
discounts and commissions, under the Securities Act.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference into this
Prospectus, (i) its Annual Report on Form 10-K and as amended for
the year ended December 31, 1993, (ii) its Form 10-Q reports for
the periods ended March 31, 1993, June 30, 1993, September 30,
1993, and March 31, 1994, (iii) its 8-K reports dated January 15,
1993 and February 4, 1993, and (iv) its proxy statement for the
stockholder meeting held on June 22, 1993. The description of the
Company's Common Stock is set forth in the Company's Form 10
Registration Statement which became effective April 30, 1975 and
which is also incorporated by reference. All documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the filing of the Registration Statement
of which this Prospectus is a part and prior to the termination of
the offering made hereby are also incorporated herein by reference.
A copy of any such document will be provided by the Company without
charge to each person to whom a copy of this Prospectus is
delivered on the written or oral request of such person to the
Company at 33 Ralph Avenue, Copiague, New York 11726, Attn: Thomas
Rice, Chief Financial Officer, Telephone No. (516) 842-8383.
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 Prospectus to the
extent that a statement contained herein or in any other subse-
quently filed document which also is incorporated or 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 Prospectus.
LEGAL MATTERS
The legality of the shares offered hereby have been passed
upon for the Company by Salon, Marrow & Dyckman, 685 Third Avenue,
New York, New York 10017. Robert V. Marrow, general counsel of the
Company is of counsel to Salon, Marrow & Dyckman.
EXPERTS
The Company's consolidated financial statements and the
related supplemental schedules, incorporated by reference in this
Registration Statement have been incorporated herein in reliance on
the report of Coopers & Lybrand, independent accountants, given on
the authority of that firm as experts in accounting and auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation contains a
provision which indemnifies the personal liabilities of directors
of the Company to the Company or to any of its shareholders for
monetary damages for breach of his fiduciary duty as a director,
except in the case where judgment or final adjudication adverse to
such director establishes that such director's acts were in bad
faith, or involved intentional misconduct, or a knowing violation
of the law or that he personally gained a financial profit or other
advantage to which he was not legally entitled or he had authorized
the payment of a dividend, or approved a purchase or redemption of
the Company's securities, or approved a distribution of assets
after dissolution or approved a loan to a director, in violation of
New York corporate law. This provision has no effect on the
availability of equitable remedies, such as an injunction or
rescission for breach of fiduciary duty.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Company pursuant to the
foregoing provision or otherwise, the Company has been advised that
in the opinion of the Securities and Exchange Commission, such
indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by the director,
officer or controlling person of the Company in the successful
defense of an 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 Act and will be governed by the final
adjudication of such an issue.
<PAGE>
No dealer, salesman, or any
other person has been autho-
rized to give any information
or to make any representations 500,000 Shares
other than those contained in
this Prospectus, and if given
or made, such information or
representations must not be CIRCA PHARMACEUTICALS, INC.
relied upon as having been
authorized by the Company. Common Stock
This Prospectus does not
constitute an offer to sell or
a solicitation of any offer to
buy, by anyone in any juris-
diction in which such offer or
solicitation is not authorized,
or in which the person making PROSPECTUS
such offer or solicitation is
not qualified to do so, or to
any person to whom it is
unlawful to make such offer or
solicitation. Neither the May 27, 1994
delivery of this Prospectus nor
any sale made hereunder shall
under any circumstances,
create an implication that
there has been no change in the
affairs of the Company since
the date hereof.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Documents Incorporated By Reference
The Company hereby incorporates by reference into this
Prospectus, (i) its Annual Report on Form 10-K and as amended for
the year ended December 31, 1993, as amended (ii) its Form 10-Q
reports for the quarters ended March 31, 1993, June 30, 1993,
September 30, 1993 and March 31, 1994 (iii) its Form 8-K reports
dated January 15, 1993 and February 4, 1993, and (iv) its proxy
statement for the stockholder meeting held on June 22, 1993. The
description of the Company's Common Stock is set forth in the
Company's Form 10 Registration Statement which became effective
April 30, 1975 and which is also incorporated by reference. All
documents filed by the Company pursuant to sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the filing of the
Registration Statement of which this Prospectus is a part and prior
to the termination of the offering made hereby are also
incorporated herein by reference. A copy of any such document will
be provided by the Company without charge to each person to whom a
copy of this Prospectus is delivered on the written or oral request
of such person to the Company at 33 Ralph Avenue, Copiague, New
York 11726, Attn: Thomas Rice, Chief Financial Officer, Telephone
No. (516) 842-8383.
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 Prospectus to the
extent that a statement contained herein or in any other subse-
quently filed document which also is incorporated or 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 Prospectus.
Item 4. Securities Covered By This Prospectus
And Plan For Distribution
The Company is authorized to issue an aggregate of 70,000,000
shares of Common Stock, $.01 par value. The holders of Common
Stock are entitled to one vote for each share held of record on all
matters to be voted on by Stockholders. All voting is on a
non-cumulative basis. The holders of Common Stock are entitled to
receive such dividends, if any, as may be declared from time to
time by the Board of Directors in its discretion from funds legally
available therefor. Upon liquidation or dissolution of the
Company, the holders of Common Stock are entitled to receive, pro
rata, all assets remaining available for distribution. The Common
Stock has no preemptive or other subscription rights and is not
subject to any future calls or assessments. There are no conversion
rights or redemption or sinking fund provisions applicable to
shares of Common Stock. All of the outstanding shares of Common
Stock are, and the shares of Common Stock offered hereby will be,
when issued and delivered, fully paid and non assessable.
Pursuant to the Circa Pharmaceuticals, Inc. 1990 Directors'
Option Plan, the total number of shares subject to options granted
is 500,000 shares of the Corporation's Common Stock, $.01 par
value.
If an Option should lapse or become unexercisable for any
reason without having been exercised in full, the unpurchased
Shares which were subject thereto, unless the Plan shall have been
terminated, shall become available for future grant under the Plan.
Item 5. Experts
The financial statements and related schedules of the Company
incorporated by reference in this Prospectus have been audited by
Coopers & Lybrand, independent accountants, for the periods
indicated in their report thereon. The financial statements
audited by Coopers & Lybrand have been included in reliance on
their report given on their authority as experts in accounting and
auditing.
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation provides as
follows:
NINTH: (1) No director shall be personally
liable to the Corporation or any of its shareholders for
damages for any breach of duty as a director; provided,
however, that the foregoing provision shall not eliminate
or limit (i) the liability of a director if a judgment or
other final adjudication adverse to him or her
establishes that his or her acts or omissions were in bad
faith or involved intentional misconduct or a knowing
violation of law or that he or she personally gained in
fact a financial profit or other advantage to which he or
she was not legally entitled or that his or her acts
violated Section 719 of the New York Business Corporation
Law; or (ii) the liability of a director for any act or
omission prior to the adoption of this Article NINTH by
the shareholders of the Corporation.
(2) The Corporation shall indemnify any
person who is or was a director or officer of the
Corporation, or is the heir, executor or administrator of
any such person, against all expenses (including without
limitation attorneys' fees), judgments, amounts paid in
settlement and fines incurred by him or her, and shall
pay in advance of final disposition the expenses of
defense (including without limitation attorneys' fees)
incurred by him or her, (i) in connection with or as a
result of any actual or threatened claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative and whether by or in the right of the
Corporation or otherwise, including without limitation
any counterclaim or crossclaim by or against him or her,
to which he or she is or was threatened to be made a
party by reason of the fact that he or she, his or her
testator or intestate is or was a director, officer,
employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, employee or agent of, or in any other capacity
for, another corporation, partnership, joint venture,
trust, pension or other employee benefit plan, or other
entity or enterprise, and (ii) in connection with or as
a result of any appeal with respect to any such action,
suit or proceeding; provided, however, that no
indemnification or payment may be made to or on behalf of
any director or officer under this Section 2 if such
indemnification or payment is prohibited under the
Business Corporation Law of the State of New York or
other applicable law as in effect from time to time.
Item 7. Exemption From Registration Claimed
The Company has granted options to purchase 87,500 shares of
common stock to four of its directors pursuant to the Circa
Pharmaceuticals, Inc. 1990 Directors' Stock Option Plan. Options
for 2,500 shares of common stock have been exercised.
All of the aforementioned issuances of securities have been
made in reliance upon the exemption from registration found in
section 4(2) of the Securities Act of 1933, as amended. In the
above described transactions, each optionholder/stockholder was a
director of the Company, having full access to information
concerning the Registrant and each had the opportunity to verify
the information supplied to him. The stock certificate issued on
exercise of the options has been impressed with a restrictive
legend and stop transfer instructions have been lodged with the
Registrant's transfer agent.
<PAGE>
Item 8. Exhibits, Financial Statement Schedules
Exhibits Page
3. Articles of incorporation as amended
and restated and By-laws *
4.1 Circa Pharmaceuticals, Inc. 1990 Directors'
Stock Option Plan as amended E-1
5.1 Opinion of Salon, Marrow & Dyckman E-3
23.1 Consent of Salon, Marrow & Dyckman to
be named in the Registration
Statement. Reference is made to
Exhibit 5.1 to this Registration
Statement, which includes such
consent.
23.2 Consent of Coopers & Lybrand,
independent accountants, named in
the Registration Statement. E-5
*The Registrant's By Laws and Registrant's Amended and Restated
Certificates of Incorporation are incorporated by reference from
the Registrant's Annual Reports on Forms 10-K filed on April 19,
1990, and March 30, 1992, respectively.
<PAGE>
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 the Registration
Statement;
(i) To include any prospectus required by Section
10(a) (3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change of such information
in the Registration Statement;
Provided, however, that paragraphs (a) (1)
(i) and (a) (1) (ii) shall not apply to information contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amend-
ment 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 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 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 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 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for the 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 Copiague, New York on this 11th day of May, 1994.
CIRCA PHARMACEUTICALS, INC.
Dated: May 27, 1994 By: /s/Melvin Sharoky, MD
Melvin Sharoky, MD,
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, hereby constitutes and appoints Melvin
Sharoky, MD and Thomas Rice and each acting alone, his true and
lawful attorney-in-fact and agents, with full power of substitu-
tion and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments
and supplements to this Registration Statement and to file the
same with all exhibits thereto and other documents in connection
with all exhibits thereto, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agents full
power and authority to do and perform each and every act and
thing necessary or appropriate to be done with respect to this
Registration Statement or any amendments or supplements hereto
and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, each acting alone, or
his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act
of 1933, as amended, this Registration Statement has been signed
by the following persons in their respective capacities with
Circa Pharmaceuticals, Inc. and on the dated indicated.
Signature Title Date
/s/Melvin Sharoky, MD
Melvin Sharoky, MD President and Chief May 27, 1994
Executive Officer
(Principal
Executive Officer)
<PAGE>
/s/Thomas Rice
Thomas Rice Executive Vice President,
Chief Operating, Financial May 27, 1994
and Accounting Officer
(Principal Financial and
Accounting Officer) and
Director
/s/Michael Fedida
Michael Fedida Director May 27, 1994
/s/Bruce Hausman
Bruce Hausman Director May 27, 1994
/s/Stanley B. Grey
Stanley B. Grey Director May 27, 1994
/s/Kenneth Siegel
Kenneth Siegel Director May 27, 1994
/s/Lawrence Raisfeld
Lawrence Raisfeld Director May 27, 1994
<PAGE>
INDEX TO EXHIBITS
Exhibits Page
3. Articles of Incorporation as
amended and By-Laws *
4.1 Circa Pharmaceuticals, Inc. 1990 Directors
Stock Option Plan E-1
5.1 Opinion of Salon, Marrow & Dyckman E-3
23.1 Consent of Salon, Marrow & Dyckman to
be named in the Registration Statement.
Reference is made to Exhibit 5.1 to this
Registration Statement, which includes
such consent.
23.2 Consent of Coopers & Lybrand, independent
accountants, to be named in Registration
Statement. E-5
- ---------------
*The Registrant's By Laws and Registrant's Amended and Restated
Certificates of Incorporation are incorporated by reference from
the Registrant's Annual Reports on Forms 10-K filed on April 19,
1990, and March 30, 1992, respectively.
CERTIFICATION OF THE SECRETARY OF
CIRCA PHARMACEUTICALS, INC.
The Company's 1990 Directors' Stock Option Plan
("the plan"), was amended upon the recommendation of the
Compensation Committee of the Board of Directors, which
recommendation was approved by the Board of Directors in a
Resolution made, seconded and unanimously carried at a meeting of
the Board of Directors held on March 24, 1994, as follows:
RESOLVED: Each director not employed
by the Company will receive an option
to purchase 5,000 shares of Circa
common stock on the date of initial
election to the Board and an option
to purchase 5,000 shares of Circa
common stock once each year
thereafter, on the date of the Annual
Meeting of Shareholders, provided
such director continues to serve on
the Board of Directors for the year
following that Annual Meeting.
Directors not employed by the Company
will also receive an annual retainer
of $15,000, an additional $1,000 for
each Audit Committee, Nominating
Committee and Compensation Committee
meeting they attend as members of
those committees. This is in lieu of
all compensation heretofore approved
for members of the Board of
Directors.
Dated: Copiague, New York
May 27, 1994
/s/Robert V. Marrow
Robert V. Marrow, Secretary
E-1.11
EXHIBIT 5.1
SALON, MARROW & DYCKMAN
685 THIRD AVENUE
NEW YORK, NEW YORK 10017
TELEPHONE (212) 661-7100
TELECOPIER (212) 661-3339
May 27, 1994
U.S. Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Circa Pharmaceuticals, Inc.
Gentlemen:
We have acted as counsel for Circa Pharmaceuticals,
Inc. (the "Company") in connection with the preparation and
filing of the Registration Statement on Form S-8 (the
"Registration Statement") pursuant to which 500,000 shares of the
Company's common stock ("Common Stock") are reserved for issuance
to directors of the Company upon the exercise of non-qualified
stock options pursuant to the Company's 1990 Directors' Stock
Option Plan (the "Plan").
We are familiar with the proceedings by which the
Plan and the shares of Common Stock have been authorized. We are
familiar with the proceedings by which the 500,000 shares of
Common Stock reserved for the Plan were approved by the Company's
stockholders. We have reviewed and are familiar with the
Certificate of Incorporation, as amended, and the By Laws of the
Company and such other corporate records and documents as we have
deemed necessary to express the opinion herein stated. We have
assumed the genuineness of all signatures and authenticity of all
documents submitted to us as certified or photostatic copies, and
the authenticity of the originals of such latter documents.
Based upon the foregoing, and having regard to
legal considerations we deem relevant, we are of the opinion that
the shares of the Common Stock have been duly and validly
authorized for issuance by the Company, and when issued under the
circumstances contemplated by the Plan, will be legally issued,
fully paid and non-assessable.
E-3.1
U.S. Securities and Exchange Commission
May 27, 1994
Page 2
We consent to the reference to our firm and the use
of this opinion as Exhibit 5 to the Registration Statement.
Salon, Marrow & Dyckman
E-3.2
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Shareholders of
Circa Pharmaceuticals, Inc.:
We consent to the incorporation by reference in the registration
statement of Circa Pharmaceuticals, Inc. on Form S-8 of our report
dated February 10, 1994 on our audits of the consolidated financial
statements and financial statement schedules of Circa
Pharmaceuticals, Inc. as of December 31, 1993 and December 31,
1992, and for each of the three fiscal years in the period ended
December 31, 1993, which reports are included in the Annual Report
on Form 10-K of Circa Pharmaceuticals, Inc. filed with the
Securities and Exchange Commission pursuant to the Securities Act
of 1934. We also consent to the reference to our Firm under the
caption "Experts".
COOPERS & LYBRAND
Melville, New York
May 27, 1994
E-5.1
