As filed with the United States Securities and Exchange Commission
on December 5, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities 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. 1994 LONG-TERM INCENTIVE PLAN
and
CIRCA PHARMACEUTICALS, INC. RESTATED DEFERRED COMPENSATION PLAN
(Full Title of Plans)
MELVIN SHAROKY, M.D.
(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
Securitie Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price 1 Fee
Common Stock, 2,700,000 16 1/2 $44,550,000 $15,362.07
$.01 par
value shares
1 Estimated soley for the purpose of calculating the
registration fee on the basis of the average of the high and low
sales price for the shares of Common Stock of the Company as
reported by the American Stock Exchange on December 2, 1994.<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 Cover, The Company,
The Deferred Compensation Plan
and The Long-Term Incentive
Plan.
1b.Securities to be Offered Cover
1c.Employees Who May Participate Eligibility and Participation
1d.Purchase of Securities Pursuant Securities Covered by this
to the Plan and Payment for Prospectus
Securities Offered
1e.Resale Restrictions Not Applicable
1f.Tax Effects of Plan Effect of Federal Income
Participation Taxation
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 and Not Applicable
Liens Therefor
2. Registrant Information and Available Information; The
Employee Plan Annual Information Company
3. Incorporation of Documents Documents Incorporated by
by Reference Reference
4. Description of Securities Securities Covered by
Prospectus, Part II
5. Interests of Named Experts Part II
and Counsel
6. Indemnification of Directors Part II
and Officers
7. Exemption from Registration Not Applicable
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
Information by Reference Certain 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.
2,700,000 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 2,700,000 shares of
Common Stock to officers and selected employees of Circa
Pharmaceuticals, Inc., a New York company, (the "Company" or
"Circa", formerly known as Bolar Pharmaceutical Co., Inc.) as
described in the Circa Pharmaceuticals, Inc. Restated Deferred
Compensation Plan (the "Deferred Compensation Plan") and the Circa
Pharmaceuticals, Inc. 1994 Long-Term Incentive Plan (the "Long Term
Incentive Plan"). The Deferred Compensation Plan and the Long-Term
Incentive Plan are hereinafter referred to as the "Plans".
This Prospectus also relates to offers and sales by certain
officers and selected employees (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, (the
"Securities Act") of shares of Common Stock of the Company that
have been or may be acquired by such persons upon the exercise of
stock options and/or the acquisition of restricted shares granted
to them pursuant to the Plans. The shares that may be so acquired
by such persons pursuant to the Plans are herein referred to as
"Option/Restricted Shares".
The Option/Restricted 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 American Stock
Exchange ("AMEX") under the symbol of RXC. On December 2, 1994
the average of the high and low sales price for the Company's
Common Stock was $16.50 per share, as reported by AMEX.
The date of this Prospectus is December 5, 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 represen-
tations 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 solici-
tation 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
The Company . . . . . . . . . . . . . . . . . . . . . . . 4
The Deferred Compensation Plan and the
Long-Term Incentive Plan . . . . . . . . . . . . . . . . . 5
Effects of Federal Income Taxation. . . . . . . . . . . . . 12
Selling Stockholders. . . . . . . . . . . . . . . . . . . . 15
Plan of Distribution. . . . . . . . . . . . . . . . . . . . 17
Documents Incorporated by Reference . . . . . . . . . . . . 17
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . 18
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Indemnification of Directors and Officers . . . . . . . . . 19
<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, 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.
<PAGE>
THE COMPANY
Circa was organized under the laws of the State of New York in
1960 and together with its wholly owned subsidiaries, is traded on
the AMEX (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 116 persons, of which 47 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 currentlydevelop-
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>
THE DEFERRED COMPENSATION PLAN AND THE
LONG-TERM INCENTIVE PLAN
General
Circa Pharmaceuticals, Inc. Restated Deferred Compensation Plan
The Deferred Compensation Plan was initially approved by the
Company's Board of Directors on April 7, 1988 and was subsequently
amended on May 14, 1991 and August 18, 1991. The Deferred
Compensation Plan, as amended, reserved 1,300,000 shares of Common
Stock and continues in existence until terminated by the Board of
Directors. The Deferred Compensation Plan was adopted to provide
for stock awards to officers and selected employees.
Circa Pharmaceuticals, Inc. 1994 Long-Term Incentive Plan
The Long-Term Incentive Plan, which became effective August 1,
1994 was approved by the Company's shareholders at the Company's
annual meeting on July 15, 1994. The Long-Term Incentive Plan
which reserved 1,400,000 shares of Common Stock for stock option
grants, stock appreciation rights ("SAR") and stock awards to
officers and selected employees, expires July 31, 1999, subject to
earlier termination by the Compensation Committee of the Board, a
committee comprised of outside Board members (the "Committee").
The purpose of the Plans is to attract and retain officers and
other selected employees whose skills and talents are important to
the Company's operations and reward them for major contributions to
the success of the Company.
Administration of the Plans
The Committee administers the Deferred Compensation Plan. The
Committee may at any time and from time to time amend the Deferred
Compensation Plan for any purpose permitted by law.
The Long-Term Incentive Plan is administered by the Committee.
No members of the Committee may receive an award under the Long-
Term Incentive Plan. The Committee's authority includes adoption
of modifications, amendments, procedures and the like as are
necessary to comply with provisions of all applicable laws and
regulations and to enable participants to receive the benefits
under the Long Term Incentive 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 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
Selected employees and officers of the Company are eligible to
participate in both the Deferred Compensation Plan and the Long-
Term Incentive Plan.
The Deferred Compensation Plan was initially adopted by the
Board on April 7, 1988 and was subsequently amended on May 14, 1991
and August 18, 1991. To date 1,185,000 shares of common stock have
been awarded under the Deferred Compensation Plan.
The Long-Term Incentive Plan was approved by the shareholders
at the Company's annual meeting on July 15, 1994. To date options
and awards for 485,000 shares of common stock have been granted and
awarded under the Long-Term Incentive Plan.
Securities Covered by this Prospectus
Deferred Compensation Plan
An aggregate of 1,300,000 shares of Common Stock are reserved
for award under the Deferred Compensation Plan. The Deferred
Compensation Plan is administered by the Committee, which
determines by majority vote, upon recommendation of management and
the Compensation Committee, the eligible employees who shall
participate in the Deferred Compensation Plan, and which designates
the number of shares of Common Stock to be awarded to each selected
employee, as well as the vesting period and the terms and
conditions of each award. The price of the shares awarded is the
par value of the shares and is paid, by the participant, to the
Company at the time of such award. Shares which have been awarded
and subsequently forfeited for any reason shall be returned to the
reserve held for and under the Deferred Compensation Plan.
Long-Term Incentive Plan
An aggregate of 1,400,000 shares of Common Stock are reserved
for stock option grants, stock awards, or SARs under the Long-Term
Incentive Plan. In the event of any change in the Company's
outstanding Common Stock by reason of a stock split, stock
dividend, combination or reclassification of shares,
recapitalization, merger or similar event, the Committee may adjust
proportionately (a) the number of shares (i) reserved under the
Plan; (ii) available Incentive Stock Options; (iii) for which
awards may be granted to an individual participant; and (iv)
covered by outstanding award denominated in stock or units of
stock; (b) the stock price related to outstanding awards; and (c)
the appropriate Fair Market Value and other price determinations
for such awards. In the event of any other change affecting the
Company's common stock or any distribution (other than normal cash
dividends) to holders of Common Stock, the Committee may make such
adjustments as it may deem equitable, including adjustments to
avoid fractional shares. In the event of a corporate merger,
consolidation, acquisition of property or stock, separation,
reorganization or liquidation, the Committee may issue or assume
stock options by means of substitution of new stock options for
previously issued stock options or an assumption of previously
issued stock options, based upon the length of the participant's
employment by the Company as specified in the awards agreement.
Under the Long-Term Incentive Plan the Company may grant Stock
Options, SARs, Stock or Cash Awards.
Stock Options granted under the Long-Term Incentive Plan shall
be exercisable at a price determined by the Committee, but in no
event which shall not be less than 100% of the fair market value as
of the date of grant. Fair Market Value is defined under the Plan
as the average of the high and low prices of Common Stock on the
AMEX, provided that, if no sales of Common Stock were made on said
exchange on the date of grant, the average of the high and low
price of the Common Stock as reported for the most recent preceding
day on which sales of Common Stock were made on said exchange. A
stock option granted under the Long-Term Incentive Plan may be in
the form of an incentive stock option ("ISO"), which in addition to
being subject to applicable terms, conditions and limitations
established by the Committee complies with Section 422 of the
Internal Revenue Codes of 1986 (the "Code"). The exercise price of
the Stock Options shall be paid in full, at the time of the
exercise, in cash or if permitted by the Committee, by tendering
Common Stock or surrendering another award including restricted
stock, valued at Fair Market Value on the dates of exercise or any
combination thereof. If shares of restricted stock are tendered in
exercise of a Stock Option, a number of shares issued upon exercise
equal to the number of shares of restricted stock used in payment
of the Stock Option shall be subject to the same restrictions as
the restricted stock tendered. Stock Options must be held at least
six months from the dates of grant to the date of exercise.
SARs granted under the Long-Term Incentive Plan represent a
right to receive a payment, in cash and/or Common Stock, equal to
the excess of the Fair Market Value of a specified number of shares
of Common Stock on the date the SAR is exercised over the Fair
Market Value on the date of grant of the SAR. No participant in
the Long-Term Incentive Plan may receive stock options or SARs, the
aggregate of which shall exceed 150,000 shares of Common Stock.
Stock Awards granted under the Long-Term Incentive Plan are
awards made in shares of common stock or denominated in units of
Common Stock. The Stock Award may be subject to conditions
established by the Committee and set forth in the award agreement
including, but not limited to, continuous service with the Company,
achievement of specific business objectives, increases in specified
indices, attainment of targeted growth rates and the comparable
measurements of Company performance. Stock Awards may be based on
Fair Market Value or other specified measures of value.
Cash Awards granted under the Long-Term Incentive Plan are
subject to future service and other restrictions and conditions
established by the Committee similar in nature to the restrictions
and conditions which may be imposed by the Committee on Stock
Awards.
Awards which are payable wholly or partly in stock must be
held for at least six months from the date of grant to the date of
disposition.
Payment of awards may be made in cash or stock or combination
thereof and may include such restrictions as the Committee may
impose including the case of Stock Awards, restrictions on transfer
and provisions for forfeiture. Dividends or dividend equivalent
rights may be extended to and made part of any award denominated in
Stock or units of Stock, subject to such restrictions as the
Committee may impose.
Under the Long-Term Incentive Plan the Company has the right
to (i) deduct applicable taxes from any award payment and withhold,
at the time of delivery or vesting of the shares under the Plan, an
appropriate number of shares for payment of taxes required by law
or (ii) take such other action as may be necessary to satisfy all
obligations for the withholding of such taxes. If Common Stock
(either freely tradeable or restricted) is used to satisfy tax
withholding, such stock shall be valued at Fair Market when the
withholding is required to be made.
No award or other benefit under the Long-Term Incentive Plan
shall be assignable or transferable or payable or exercisable by
anyone other than the participant to whom it was granted except as
provided under the Plan in the event of death or disability. See
"Forfeitures and Penalties".
Forfeitures and Penalties
Restated Deferred Compensation Plan
The Committee designates the vesting period of the awards.
Awards which are forfeited and do not vest, are returned to the
reserve of shares held for the Deferred Compensation Plan.
Long-Term Incentive Plan
In the event that the employment of a participant terminates
other than for reasons of retirement, death or disability, all-
non-vested options and/or awards are immediately cancelled, unless
the award agreement provides otherwise. When a participant's
employment terminates as a result of retirement the Committee may
(i) permit awards granted under the Plan to continue in effect
beyond the date of the retirement and (ii) accelerate the
exercisability and vesting of any award. In the event of a
participant's death, the participant's estate or beneficiaries
shall have the period specified in the award agreement within which
to receive or exercise any outstanding awards held by the
participant. Rights to any outstanding award shall pass by will or
the laws of descent and distribution in the following order (i) to
beneficiaries designated by the participant; (ii) if none
designated, to the legal representative of the participant; (iii)
if no legal representative, to the persons entitled thereto and
determined by a court of competent jurisdiction. In the event that
the participant is deemed by the Company to be disabled, any award
may be paid to or exercised by the participant, if legally
competent, or by a duly-appointed representative if the participant
is legally incompetent.
After death or disability of the participant, the Committee
may, in its sole discretion at any time (i) terminate restrictions
in any award agreement; (ii) accelerate any or all installments and
rights; and (iii) instruct the Company to pay the total of any
acceleration payments to the participant, the participant's estate,
beneficiaries or representative.
Unless an award agreement specifies otherwise, the Committee
may cancel any unexpired, unpaid award at any time if the
participant is not in compliance with all applicable provisions of
the award agreement and the Plan.<PAGE>
Adjustments
Long-Term Incentive Plan
The Long-Term Incentive Plan provides that in the event of any
change in the outstanding Common Stock of the Company by reason of
a stock split, stock dividend, combination or reclassification of
shares, recapitalization, merger or similar event, the Committee
may adjust proportionately (a) number of shares of Common Stock
(i) reserved under the Plan, (ii) available for ISO's; (iii) for
which awards may be granted to an individual participant and (iv)
covered by outstanding awards denominated in stock or units of
stock; (b) the Stock prices related to outstanding awards; and (c)
the appropriate Fair Market Value and other price determinations
for such awards. In the event of any other change affecting the
Common Stock or any distribution (other than normal cash dividends)
to holders of Common Stock, such adjustments as may be deemed
equitable by the Committee, including adjustments to avoid
fractional shares, shall be made to give proper effect to such
event. In the event of a corporate merger, consolidation,
acquisition of property or stock, separation, reorganization or
liquidation, the Committee may issue or assume stock options by
means of substitution of new stock options for previously issued
stock options or an assumption of previously issued stock options,
based upon the length of the participant's employment by the
Company as specified in the awards agreement.
Plan Amendments
Deferred Compensation Plan
The Committee may amend, suspend or terminate the Deferred
Compensation Plan for any purpose permitted by law.
Long-Term Incentive Plan
The Committee may amend, modify, suspend or terminate the
Long-Term Incentive Plan in order to meet any changes in legal
requirements or accomplish any other purpose permitted by law.
Subject to changes in legal requirements that would permit
otherwise, the Long-Term Incentive Plan may not be amended without
the consent of the holders of a majority of the shares of Common
Stock then outstanding to (i) increase the aggregate number of
shares of Common Stock that may be issued under the Plan (except as
provided for adjustments for various changes to the Common Stock
i.e.: stock split, stock dividend, recapitalization); (ii) decrease
the option price; (iii) materially modify the requirements as to
eligibility for participation; (iv) withdraw administration of the
Long-Term Incentive Plan from the Committee or (v) extend the
period during which awards may be granted.<PAGE>
Term of Plan
Deferred Compensation Plan
The Deferred Compensation Plan shall continue in existence
until terminated by the Committee. In the event of termination by
the Committee, any awards or grants then outstanding will not be
affected and the authority of the Committee to continue to
administer the Plan will not be affected.
Long-Term Incentive Plan
The Plan shall be terminated on August 1, 1999, the fifth
anniversary of the effective date of the Plan. The Plan is subject
to earlier termination by the Committee, after which no awards or
grants can be made under the Plan, however, any such termination
shall not affect awards or grants then outstanding or the authority
of the Committee to continue to administer the Plan.
<PAGE>
EFFECT OF FEDERAL INCOME TAXATION
Deferred Compensation Plan
The Deferred Compensation Plan permits stock grants to
officers and selected employees. The officers or selected employee
who is granted restricted stock could be required to include in
gross taxable income, the excess of the fair market value of the
restricted stock valued as of the date corresponding to the end of
the "Restricted Period" over the amount initially paid to purchase
such restricted stock (usually par value), at the time the
Restricted Period ends. The employee may elect, at the time of the
grant of restricted stock, to include into gross taxable income the
excess of the fair market value of the restricted stock at the date
it is issued over the amount paid. This election must be made no
later than thirty (30) days from the date of issuance of the
restricted stock.
A special rule is applicable to those granted restricted stock
who are officers of the Company and who are therefore subject to
liability under Section 16(b) of the Exchange Act. If at the time
of the end of the Restricted Period the employee shareholder is
still subject to liability under Section 16(b) of the Exchange Act
then the employee shareholder shall not have to recognize income
until the Section 16(b) restriction terminates unless the employee
elects to be taxed at the time of the transfer.
The Company may claim an income tax deduction (compensation
expense) in the amount taxable to the employee at the time the
employee must include such amounts in his gross income.
Long-Term Incentive Plan:
The Long-Term Incentive Plan permits the granting of ISOs,
Non-Statutory Stock Options ("NSOs"), SARs and Stock Awards.
1. Incentive Stock Options
Under the Code, a participant will recognize no taxable income
by reason of the grant or exercise of an ISO provided the holding
period requirements discussed below are satisfied. If a participant
exercised an ISO and does not dispose of the shares so acquired
until after the later of (a) one year from the date of transfer of
the shares to the holder; or (b) two years from the date of grant
of the option, any amount realized by the holder upon the sale of
shares in excess of the exercise price will be recognized by the
holder as a capital gain and any loss sustained by the holder will
be a capital loss, if the shares are capital assets in his or her
hands. The excess, if any, of the fair market value of the shares
at the time of exercise over the exercise price is an item of tax
preference to the holder for purposes of the alternative minimum
tax, unless there is an early disposition of the shares.
If the holder disposes of the shares before the holding period
requirements discussed above are satisfied, then the holder will
recognize ordinary income in his or her taxable year in which the
disposition occurs in an amount equal to the excess, if any, of the
fair market value of the stock on the date of exercise over the
option price of the stock. If the sale price is more than the fair
market value on the exercise date, the holder will also recognize
capital gain generally in an amount equal to the excess, if any, of
fair market value on the exercise date over the sale price.
However, if the sale price is less than the fair market value on
the exercise date, the holder will recognize ordinary loss in an
amount equal to the excess, if any, of the exercise price paid over
the sale price. The Company will be entitled to a deduction for
its taxable year in which the disposition occurs in the amount of
the ordinary income so recognized.
No deduction will be allowed to the Company for federal income
tax purposes in connection with the grant or exercise of the
option, if the holding period requirements discussed above are
satisfied.
2. Non-Statutory Stock Options:
The grantee of an NSO under the Long-Term Incentive Plan
recognizes ordinary income in an amount equal to the excess, if
any, of the fair market value of the shares at the time of exercise
over the exercise price, and the Company will be entitled to a
deduction in the same amount as the option holder recognizes
ordinary income.
Upon a sale of the shares so acquired, the holder will have a
capital gain or loss, as the case may be, in an amount equal to the
difference between the amount realized on such sale and the tax
basis of the shares sold, if the shares are capital assets in the
hands of the holder. The tax basis of the shares will be equal to
their fair market value on the date of exercise, but not less than
the exercise price, and their holding period for determining long
or short term capital gain or loss will begin on the day after the
tax basis of the share is so determined.
3. Stock Appreciation Rights:
An employee will recognize no taxable income by reason of the
grant of a stock appreciation rights. Payments received by an
employee for SARs are includible in the employee's gross income in
the year the rights are exercised.<PAGE>
The Company may claim an income tax deduction, (compensation
expense) in the amount taxable to the employee at the time the
employee must include such amount in his gross income.
4. Stock Awards:
Generally, when an employee is granted stock he must include
in his gross income at the time of such grant the fair market value
of the stock, minus any amounts paid by the employee for the stock.
However, an employee who is granted restricted stock could be
required to include in taxable income the excess of the fair market
value of the restricted stock valued as of the date corresponding
to the end of the "Restricted Period" over the amount initially
paid to purchase such restricted stock (usually par value), at the
time the Restricted Period ends. The employee may elect, at the
time of the grant of restricted stock, to include into income the
excess of the fair market value of the restricted stock at the date
it is issued over the amount paid. This election must be made no
later than thirty (30) days from the date of issuance of the
restricted stock.
A special rule is applicable to those granted restricted stock
who are officers of the Company and who are therefore subject to
liability under Section 16(b) of the Exchange Act. If at the time
of the end of the Restricted Period the employee shareholder is
still subject to liability under Section 16(b) of the Exchange Act
then the employee shareholder shall not have to recognize income
until the Section 16(b) restriction terminates unless the employee
elects to be taxed at the time of the transfer.
The Company may claim an income tax deduction (compensation
expense) in the amount taxable to the employee at the time the
employee must include such amounts in his gross income.
<PAGE>
SELLING STOCKHOLDERS
The Prospectus covers Option/Restricted Shares that have been
or may be acquired upon exercise of options and/or the vesting of
shares awarded pursuant to the Long-Term Incentive Plan and the
Deferred Compensation Plan, held by the Selling Stockholders as of
the date of this Registration Statement.
The following table sets forth the name of each Selling
Stockholder, the nature of his or her position, officer or other
material relationship with 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/RESTRICTED
SHARES ACQUIRED SHARES
UNDER THE OWNED
SHARES OWNED (1) PLANS PRIOR AFTER
AFTER OFFERING TO OFFERING OFFERING
HEREIN (1) NUMBER PERCENT
NAME
John Botek 30,000 30,000 0 -
Vice President
Administration
Tommy Chau 6,000 6,000 0 -
Director - Gum
Development
Robert Connolly 30,100 30,000 100 -
Vice President
Manufacturing
Stuart Deitel 30,000 30,000 0 -
Vice President
Business Development
Darius Dubash 9,300 9,000 300 -
Director
Product Development
David Genzler(2) 7,500 7,500 0 -
Gwen Gerrick 9,300 9,000 300 -
Director -
Administrative
Services and Investor
Relations and Secretary
OPTION/RESTRICTED
SHARES ACQUIRED SHARES
UNDER THE OWNED
SHARES OWNED (1) PLANS PRIOR AFTER
AFTER OFFERING TO OFFERING OFFERING
HEREIN (1) NUMBER PERCENT
NAME
Ed Haley 30,000 30,000 0 -
Vice President -
Sales and
Marketing -
Private Labels
Moez Kakal 15,100 15,000 100 -
Director -
Quality Assurance
Jack Kornreich(2)150,000 150,000 0 -
Seymour Inkles(2)106,250 85,000 21,250 -
Nicholas LaBella 160,000 160,000 0 -
Vice President
Research and Development
Dominick 9,000 9,000 0 -
Lamantanaro
Director, Analytical
Laboratories
Angelo C. Malahias15,000 15,000 0 -
Corporate Controller
Ralph Manning 6,000 6,000 0 -
Packaging Manager
Robert Marrow(2) 10,000 10,000 0 -
Paul Morris 110,000 110,000 0 -
Director, Drug
Development
Serap Ozelkan 9,000 9,000 0 -
Assistant Director
Research and
Development
Robert Polke 6,000 6,000 0 -
Manufacturing Manager
OPTION/RESTRICTED
SHARES ACQUIRED SHARES
UNDER THE OWNED
SHARES OWNED (1) PLANS PRIOR AFTER
AFTER OFFERING TO OFFERING OFFERING
HEREIN (1) NUMBER PERCENT
NAME
Thomas P. Rice 175,000 175,000 0 -
Executive Vice President
Chief Operating and
Chief Financial Officer
Karen Sattig(2) 2,500 2,500 0 -
Melvin Sharoky, 700,000 700,000 0 -
M.D.,
President and
Chief Executive
Officer
Pat Skukri(2) 60,000 60,000 0 -
Arif Turkeli 6,200 6,000 200 -
Manager, Quality
Assurance
Technical Services
(1) Includes Option/Restricted Shares awarded to each selling
stockholder under the Plans, whether or not exercisable or subject
to restrictions as of December 2, 1994.
(2) Former Employee.
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 AMEX 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 for the year ended
December 31, 1993, (ii) its Form 10-Q reports for the quarterly
periods ended March 31, 1994, June 30, 1994 and September 30, 1994,
and (iii) its proxy statement for the shareholder meeting held on
July 15, 1994. 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: Gwen Gerrick, Director,
Investor Relations and Secretary, 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.
EXPERTS
The consolidated balance sheets as of December 31, 1993 and
1992 and the consolidated statements of operations, cash flows,
shareholders' equity and the financial statement schedule for each
of the three years in the period ended December 31, 1993,
incorporated by reference in this Registration Statement, have been
incorporated in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as
experts in accounting and auditing.<PAGE>
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 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 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 Securities 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 2,700,000 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, PROSPECTUS
or in which the person making
such offer or solicitation is
not qualified to do so, or to
any person to whom it is
unlawful to make such offer or December 5, 1994
solicitation. Neither the
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.
<PAGE>
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 for the year ended
December 31, 1993, (ii) its Form 10-Q Reports for the quarterly
periods ended March 31, 1994, June 30, 1994 and September 30, 1994
and (iii) its proxy statement for the shareholder meeting held on
July 15, 1994. 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: Gwen Gerrick, Director, Investor Relations
and Secretary, 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 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. Deferred
Compensation Plan, the total number of shares reserved for stock
award is 1,300,000 shares of the Corporation's Common Stock, $.01
par value.
Pursuant to the Circa Pharmaceuticals, Inc. 1994 Long-Term
Incentive Plan, the total number of shares reserved for option
grants and stock awards is 1,400,000 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 consolidated balance sheets as of December 31, 1993 and
1992 and the consolidated statements of operations, cash flows,
shareholders' equity and the financial statement schedule for each
of the three years in the period ended December 31, 1993,
incorporated by reference in this Registration Statement, have been
incorporated in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm 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 stock awards totalling 1,185,000
shares to ten officers, employees and former employees pursuant to
the Circa Pharmaceuticals, Inc. Deferred Compensation Plan.
550,000 of such shares have vested.
The Company has granted options to purchase 485,000 shares of
common stock to seventeen of its officers and selected employees
pursuant to the Circa Pharmaceuticals, Inc. 1994 Long-Term
Incentive Compensation Plan. No options 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 option holder/stockholder was an
officer and/or employee 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 and grant of the stock awards
have been and will in the future be impressed with a restrictive
legend and stop transfer instructions have been lodged with the
Registrant's transfer agent.
Item 8. Exhibits, Financial Statement Schedules
Exhibits Page
3. Certificate of incorporation as amended
and restated and By-laws *
4.1 Circa Pharmaceuticals, Inc. Restated E-1
Deferred Compensation Plan
4.2 Circa Pharmaceuticals, Inc. 1994 E-2
Long-Term Incentive Plan
5.1 Opinion of Salon, Marrow & Dyckman E-7
24(a) 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.
24(b) Consent of Coopers & Lybrand L.L.P. E-9
independent accountants, named in
the Registration Statement.
25(b) Power of attorney (found on Page II-7)
*The Registrant's By-Laws and Amended and Restated Certificate 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 2nd day of December, 1994.
CIRCA PHARMACEUTICALS, INC.
By:/s/Melvin Sharoky, M.D.
Melvin Sharoky, M.D.,
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, hereby constitutes and appoints Melvin
Sharoky, M.D. and Thomas P. Rice and each acting alone, his true
and lawful attorney-in-fact and agents, with full power of
substitution 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 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, M.D.
Melvin Sharoky, M.D. President and Chief December 2, 1994
Executive Officer
(Principal
Executive Officer)
and Director
/s/Thomas P. Rice
Thomas P. Rice Executive Vice President, December 2, 1994
Chief Operating and
Financial Officer
(Principal Financial and
Accounting Officer) and
Director
/s/Michael Fedida
Michael Fedida Director December 2, 1994
/s/Bruce Hausman
Bruce Hausman Director December 2, 1994
/s/Stanley B. Grey
Stanley B. Grey Director December 2, 1994
/s/Kenneth Siegel
Kenneth Siegel Director December 2, 1994
<PAGE>
INDEX TO EXHIBITS
Exhibits Page
3. Certificate of Incorporation as
amended and restated and By-Laws *
4.1 Circa Pharmaceuticals, Inc. Restated
Deferred Compensation Plan E-1
4.2 Circa Pharmaceuticals, Inc. 1994
Long-Term Incentive Plan E-2
5.1 Opinion of Salon, Marrow & Dyckman E-7
24(a) 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.
24(b) Consent of Coopers & Lybrand L.L.P., E-9
independent accountants, to be named
in Registration Statement.
25(b) Power of attorney (Found on Page II-7)
*The Registrant's By-Laws and Amended and Restated Certificate 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>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement 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. and
subsidiaries. We also consent to the reference to our firm under
the caption "Experts".
COOPERS & LYBRAND L.L.P.
Melville, New York
December 2, 1994<PAGE>
EXHIBIT 5.1
SALON, MARROW & DYCKMAN
685 THIRD AVENUE
NEW YORK, NEW YORK 10017
TELEPHONE (212) 661-7100
TELECOPIER (212) 661-3339
December 2, 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 (i) 1,300,000 shares of the Company's
common stock ("Common Stock") are reserved for issuance as stock
awards to employees of the Company pursuant to the Company's
Restated Deferred Compensation Plan; and (ii) 1,400,000 shares of
Common Stock are reserved for issuance as stock awards and upon the
exercise of stock options to officers and selected employees
pursuant to the Company's 1994 Long-Term Incentive Plan
(hereinafter referred to as the "Plans").
We are familiar with the proceedings by which the Plans
and the shares of Common Stock have been authorized. We are
familiar with the proceedings by which the 2,700,000 shares of
Common Stock reserved for the Plans were approved by the Company's
Board of Directors and shareholders, as the case may be. We have
reviewed and are familiar with the Certificate of Incorporation, as
amended and restated, 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 the authenticity of all documents submitted
to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and
the authenticity of the originals of such latter documents.<PAGE>
U.S. Securities and
Exchange Commission
December 2, 1994
Page 2
Based upon the foregoing, and having regard to legal
considerations we deem relevant, we are of the opinion that the
shares of Common Stock have been duly and validly authorized for
issuance by the Company, and when issued under the circumstances
contemplated by the Plans, will be legally issued, fully paid and
non-assessable.
We consent to the reference to our firm and the use of
this opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
Salon, Marrow & Dyckman<PAGE>
CIRCA PHARMACEUTICALS, INC.
RESTATED DEFERRED COMPENSATION PLAN
1. Purposes. The Circa Pharmaceuticals, Inc. Deferred
Compensation Plan (the Plan) is designed to attract and
retain executives and other selected employees whose skills
and talents are important to the Company's operations, and
to reward them for important contributions to the success of
the Company.
2. Common Stock Available for Awards. The Board Resolved
to reserve 900,000 shares of the Company's common stock for
issuance under the Plan on April 7, 1988, and added 200,000
shares on May 14, 1991, and 200,000 shares on August 18,
1991, making a total of 1,300,000 shares reserved by the
Board for issuance under the Plan. Shares awarded under the
Plan and subsequently forfeited for any reason shall be
returned to the reserve held for and under the Plan.
3. Eligible Participants. Employees of the Company who
hold positions of responsibility and whose performance, in
the judgement of the Compensation Committee of the Board of
Directors, can have a significant impact on the success of
the Company.
4. Administration. The Plan shall be administered by the
Board of Directors, which shall determine by majority vote,
upon recommendation of management and the Compensation
Committee, the eligible employees who shall participate in
the Plan; and shall designate the number of shares of the
Company's common stock to be awarded to each selected
participant, as well as the vesting period and the terms and
conditions of each such award. The officers of the Company,
upon direction by the Board, are authorized to perform any
and all acts and to execute and deliver such documents as,
with the advice of Counsel, are necessary to effectuate the
determinations of the Board.
5. Terms of Awards. The price of shares Awarded shall be
the par value of the shares, paid by the Participant to the
Company at the time of the Award.
6. Effective Date, Modification and Termination. This plan
is deemed to have become effective as of April 7, 1988, when
the Board resolved to reserve 900,000 shares of the
Company's common stock for issuance under the Plan as stated
in section 2 above. The Board may amend, suspend or
terminate the Plan for any purpose permitted by law, and the
Plan shall continue in existence until terminated by the
Board.
<PAGE>
CIRCA PHARMACEUTICALS, INC.
1994 LONG-TERM INCENTIVE PLAN
I. Purposes
The Circa Pharmaceuticals, Inc. 1994 Long-Term Incentive
Plan (the "Plan") is designed to attract and retain executives
and other selected employees whose skills and talents are
important to the Company's operations, and reward them for major
contributions to the success of the Company.
II. Definitions
2.1 "Award" - The grant of any form of stock option, stock
appreciation right, stock or cash award, whether granted singly,
in combination or in tandem, to a Participant pursuant to such
terms, conditions, performance requirements and limitations as
the Committee may establish.
2.2 "Award Agreement" - An agreement between the Company
and a Participant that sets forth the terms, conditions,
performance requirements and limitations applicable to an Award.
2.3 "Code" - The Internal Revenue Code of 1986, as amended
from time to time.
2.4 "Committee" - The committee designated by the Board of
Directors of the Company to administer the Plan. The Committee
shall be constituted to permit the Plan to comply with any rules
and regulations promulgated under Section 162(m) of the Code or
any successor provision. No member of the Committee may receive
an Award.
2.5 "Common Stock" or "Stock" - Authorized and issued or
unissued $0.01 Par Value Common Stock of the Company.
2.6 "Company" - Circa Pharmaceuticals, Inc. and its
subsidiaries and partnerships and other business ventures in
which Circa has a significant equity interest, as determined in
the sole discretion of the Committee.
2.7 "Fair Market Value" - The average of the high and low
prices of Common Stock on the American Stock Exchange for the
date in question, provided that, if no sales of Common Stock were
made on said exchange on that date, the average of the high and
low prices of Common Stock as reported for the most recent
preceding day on which sales of Common Stock were made on said
exchange.
2.8 "Participant" - An employee of the Company to whom an
Award has been made.
<PAGE>
III. Eligibility
Individuals eligible for an Award are employees of the
Company who hold positions of responsibility and whose
performance, in the judgment of the Committee, can have a
significant effect on the success of the Company.
IV. Common Stock Available for Awards
The number of shares that may be issued under the Plan for
Awards granted wholly or partly in Stock during the term of the
Plan is 1,400,000. Included in this share limit are Awards
denominated in units of Stock that may be redeemed or exercised
for cash as well as for Stock. Common Stock related to Awards
that (i) are forfeited or terminated, (ii) expire unexercised or
are settled in cash in lieu of Stock or in such manner that all
or some of the shares covered by an Award are not issued to a
Participant or (iii) are exchanged for Awards that do not involve
Common Stock shall immediately become available for Awards.
V. Administration
The Plan shall be administered by the Committee, which shall
have full and exclusive power to interpret the Plan, to grant
waivers of Awards restrictions and to adopt such rules,
regulations and guidelines for carrying out the Plan as it may
deem necessary or proper. These powers include, but are not
limited to, the adoption of modifications, amendments, procedures
and the like as are necessary to comply with provisions of all
applicable laws and regulations and to enable Participants to
receive the intended advantages and benefits under the Plan.
VI. Awards
6.1 The Committee shall determine the type of Award(s) to
be made to each Participant and shall set forth in the related
Award Agreement the terms, conditions, performance requirements
and limitations applicable to each Award. Awards may include but
are not limited to those listed in this Article VI. Awards may
be granted singly, in combination or in tandem. No Participant
may receive, under the Plan, stock options or stock appreciation
rights the aggregate of which shall exceed 150,000 shares.
(a) Stock Option - A grant of a right to purchase a
specified number of shares of Common Stock the purchase price of
which shall be not less than 100% of Fair Market Value on the
date of grant, as determined by the Committee. A Stock Option
may be in the form of an incentive stock option ("ISO") which, in
addition to being subject to applicable terms, conditions and
limitations established by the Committee, complies with Section
422 of the Code.
(b) Stock Appreciation Right - A right to receive a
payment, in cash and/or Common Stock, equal to the excess of the
Fair Market Value of a specified number of shares of Common Stock
on the date the stock appreciation right ("SAR") is exercised
over the Fair Market Value on the date of grant of the SAR, as
set forth in the applicable Award Agreement.
(c) Stock Award - An Award made in Stock or denominated in
units of Stock. All or part of any Stock Award may be subject to
conditions established by the Committee and set forth in the
Award Agreement, including, but not limited to, continuous
service with the Company, achievement of specific business
objectives, increases in specified indices, attainment of
targeted growth rates and other comparable measurements of
Company performance. Such Awards may be based on Fair Market
Value or other specified measures of value.
(d) Cash Award - An Award denominated in cash with the
eventual payment amount subject to future service and other
restrictions and conditions established by the Committee and set
forth in the Award Agreement, including, but not limited to,
continuous service with the Company, achievement of specific
business objectives, increases in specified indices, attainment
of targeted growth rates and other comparable measurements of
Company performance.
6.2 Awards payable wholly or partly in Stock must be held
for at least six months, (i) in the case of a Stock Option or
SAR, from the date of grant to the date of exercise and (ii) in
the case of other Awards, from the date of acquisition to the
date of disposition.
VII. Payment of Awards
Payment of Awards may be made in cash or Stock or a
combination thereof and may include such restrictions as the
Committee shall impose, including in the case of Stock,
restrictions on transfer and provision for forfeiture. When
transfer of Stock is so restricted or Stock is subject to
forfeiture, it is referred to as "Restricted Stock." The
Committee may permit a Participant to defer payments in
accordance with its procedures and in a manner that permits such
deferrals to comply with applicable requirements of the Code
including the ability to defer payment until after retirement.
Dividends or dividend equivalent rights may be extended to and
made part of any Award denominated in Stock or units of Stock,
subject to such conditions and restrictions and the Committee may
impose. The Committee may also establish rules and procedures
for the crediting of interest on deferred cash payments and
dividend equivalents for deferred payments denominated in Stock
or units of Stock.
VIII. Stock Option Exercise
The price at which shares of Common Stock may be purchased
under a Stock Option shall be paid in full at the time of the
exercise in cash or, if permitted by the Committee, by means of
tendering Common Stock or surrendering another Award, including
Restricted Stock, valued at Fair Market Value on the date of
exercise, or any combination thereof. The Committee shall
determine acceptable methods for tendering Common Stock or other
Awards and may impose such conditions on the use of Common Stock
or other Awards to exercise a Stock Option as it deems
appropriate. If shares of Restricted Stock are tendered in the
exercise of a Stock Option, a number of shares issued upon
exercise, equal to the number of shares of Restricted Stock used
as consideration therefor, shall be subject to the same
restrictions as the Restricted Stock so tendered.
<PAGE>
IX. Tax Withholding
The Company shall have the right to (i) deduct applicable
taxes from any Award payment and withhold, at the time of
delivery or vesting of shares under the Plan, an appropriate
number of shares for payment of taxes required by law or (ii)
take such other action as may be necessary to satisfy all
obligations for withholding of such taxes. If Common Stock or
Restricted Stock is used to satisfy tax withholding, such Stock
shall be valued at Fair Market when the withholding is required
to be made.
X. Amendment, Modification, Suspension or
Discontinuance of the Plan
The Committee may amend, modify, suspend or terminate the
Plan in order to meet any changes in legal requirements or
accomplish any other purpose permitted by law. Subject to
changes in legal requirements that would permit otherwise, the
Plan may not be amended without the consent of the holders of a
majority of the shares of Common Stock then outstanding to (i)
increase the aggregate number of shares of Common Stock that may
be issued under the Plan (except for adjustments pursuant to
Article XIV of the Plan), (ii) decrease the option price, (iii)
materially modify the requirements as to eligibility for
participants, (iv) withdraw administration of the Plan from the
Committee or (v) extend the period during which Awards may be
granted.
XI. Termination of Employment
11.1 If the employment of a Participant terminates other
than as provided in Sections 11.2 and 11.3, all unexercised,
deferred and unpaid Awards shall be canceled immediately, unless
the Award Agreement provides otherwise.
11.2 Retirement. When a Participant's employment terminates
as a result of retirement, the Committee may (i) permit Awards to
continue in effect beyond the date of retirement in accordance
with the applicable Award Agreement and (ii) accelerate the
exercisability and vesting of any Award.
11.3 Death or Disability.
(a) In the event of a Participant's death the Participant's
estate or beneficiaries shall have the period specified in
the Award Agreement within which to receive or exercise any
outstanding Award held by the Participant under the terms
specified therein. Rights to any outstanding Award shall
pass by will or the laws of descent and distribution in the
following order: (i) to beneficiaries designated by the
Participant, (ii) if none, to a legal representative of the
Participant, (iii) if none, to the persons entitled thereto
as determined by a court of competent jurisdiction. Subject
to subsection (c) below, any Award so passing shall be
exercised or paid out at such times and in such manner as if
the Participant were living.
(b) In the event a Participant is deemed by the Company to
be disabled, any Award may be paid to or exercised by the
Participant if legally competent, or by a duly appointed
representative if the Participant is legally incompetent.
(c) After the death or disability of a Participant, the
Committee may in its sole discretion at any time (i)
terminate restrictions in any Award Agreement, (ii)
accelerate any or all installments and rights and (iii)
instruct the Company to pay the total of any accelerated
payments in a lump sum to the Participant, the Participant's
estate, beneficiaries or representative (notwithstanding
that, in the absence of such termination of restrictions or
acceleration of payments, any or all of the payments due
under the Awards might ultimately have become payable to
other beneficiaries).
(d) In the event of uncertainty as to interpretation of or
controversies concerning this Section 11.3, the Committee's
determination shall be binding and conclusive.
XII. Cancellation and Rescission of Awards
Unless an Award Agreement specifies otherwise, the Committee
may cancel any unexpired, unpaid Awards at any time if the
Participant is not in compliance with all applicable provisions
of the Award Agreement and the Plan.
XIII. Nonassignability
Except pursuant to Section 11.3, no Award or any other
benefit under the Plan shall be assignable or transferable or
payable to or exercisable by anyone other than the Participant to
whom it was granted.
XIV. Adjustments
In the event of any change in the outstanding Common Stock
of the Company by reason of a Stock split, Stock dividend,
combination or reclassification of shares, recapitalization,
merger or similar event, the Committee may adjust proportionally
(a) the number of shares of Common Stock (i) reserved under the
Plan, (ii) available for ISOs, (iii) for which Awards may be
granted to an individual Participant and (iv) covered by
outstanding Awards denominated in Stock or units of Stock; (b)
the Stock prices related to outstanding Awards; and (c) the
appropriate Fair Market Value and other price determinations for
such Awards. In the event of any other change affecting the
Common Stock or any distribution (other than normal cash
dividends) to holders of Common Stock, such adjustments as may be
deemed equitable by the Committee, including adjustments to avoid
fractional shares, shall be made to give proper effect to such
event. In the event of a corporate merger, consolidation,
acquisition of property or Stock, separation, reorganization or
liquidation, the Committee may issue or assume Stock Options by
means of substitution of new Stock Options for previously issued
Stock Options or an assumption of previously issued Stock
Options.
XV. Notice
Any notice to the Company required by any of the provisions
of the Plan shall be addressed to the chief human resources
officer or to the chief executive officer of the Company in
writing and shall become effective when it is received by the
office of either of them.
XVI. Unfunded Plan
Insofar as it provides for Awards of cash and Common Stock,
the Plan shall be unfunded. Although accounts may be established
with respect to Participants under the Plan, any such accounts
shall be used merely as a bookkeeping convenience and the Company
shall not be required to segregate any assets in respect of the
Plan. Any liability of the Company to any Participant with
respect to an Award shall be based solely upon any contractual
obligations that may be created by the Plan and any Award
Agreement; no such obligation of the Company shall be deemed to
be secured by any pledge or other encumbrance on any property of
the Company. Neither the Company nor the Committee shall be
required to give any security or bond for the performance of any
obligation that may be created by the Plan.
XVII. Governing Law
The Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by the laws
of the United States, shall be governed by the laws of the State
of New York and construed accordingly.
<PAGE>
XVIII. Effective and Termination Dates
The Plan shall become effective on August 1, 1994, provided
that it has been previously approved by the holders of a majority
of the shares of Common Stock then outstanding. The Plan shall
terminate five years later, subject to earlier termination by the
Committee pursuant to Article X after which no Awards may be made
under the Plan, but any such termination shall not affect Awards
then outstanding or the authority of the Committee to continue to
administer the Plan.
