As filed with the Securities and Exchange Commission on July 14, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
AKORN, INC.
(Exact name of registrant as specified in its charter)
Louisiana 72-0717400
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 Tri-State International
Suite 100
Lincolnshire, Illinois 60069-4404
(Address, including zip code, of
registrant's principal executive offices)
Amended and Restated Akorn, Inc. 1988 Incentive Compensation Program
(Full title of the plan)
__________
Rita J. McConville
Vice President - Finance and Administration
100 Tri-State International
Suite 100
Lincolnshire, Illinois 60069-4404
(847) 236-3800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Margaret F. Murphy
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered(1) per unit offering price fee
- ------------------- ------------- ---------------- ---------------- ------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value per 1,000,000 shares $ 2.25(2) $2,250,000(2) $ 681.82(2)
share)....
</TABLE>
(1) A total of 1,000,000 shares were previously registered on each of Form
S-8 Registration Statement No. 33-24970 and Form S-8 Registration
Statement No. 33-70686 for issuance through the Amended and Restated
Akorn, Inc. 1988 Incentive Compensation Program. Upon a stock split,
stock dividend or similar transaction in the future and during the
effectiveness of this Registration Statement involving Common Stock of
the Company, the number of shares registered shall be automatically
increased to cover the additional shares in accordance with Rule 416(a)
under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low price per share of the Common Stock on The
Nasdaq Stock Market on July 9, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Akorn, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission"),
are incorporated herein by reference:
(a) The Company's Report on Form 10-K for the fiscal year ended
June 30, 1996 and the transition period from July 1, 1996 to December 31,
1996 filed pursuant to Section 13 of the Securities Exchange Act of 1934
(the "1934 Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(c) All other reports filed by the Company with the Commission
pursuant to Section 13 of the 1934 Act since December 31, 1996; and
(d) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 10 effective August 15, 1986 (No.
0-13976, as amended by the Company's amendment on Form 8 to its Form 10), as
modified by the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1986.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall, except to the extent
otherwise provided by Regulation S-K or any other rule promulgated by the
Commission, be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 83 of the Louisiana Business Corporation Law provides in part
that a corporation may indemnify any director, officer, employee or agent of
the corporation, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with any action, suit or proceeding to which he is or was a
party or is threatened to be made a party (including any action by or in the
right of the corporation) if such action arises out of his acts on behalf of
the corporation and he acted in good faith not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful; provided that
in case of actions by or in the right of the corporation, the indemnity
shall be limited to expenses (including attorney's fees and amounts paid in
settlement which in the judgment of the board of directors do not exceed the
estimated expense of litigating the action to conclusion) actually and
reasonably incurred in connection with the defense or settlement of such
action and no indemnification shall be available if such person shall have
been adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless and only to the extent that the court
shall determine otherwise. Any such indemnification (unless ordered by the
court) shall be made by the corporation only as authorized in the specific
case upon a determination that the applicable standard of conduct has been
met. To the extent that a director, officer or employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
such action, suit or proceeding, or of any claim therein, he shall be
indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection therewith.
The Board of Directors of a corporation may authorize the payment of
expenses of defending a suit, action or proceeding in advance of the final
disposition thereof, upon receipt of an undertaking that the amounts
advanced will be repaid if it is ultimately determined that the person to
whom or on whose behalf the advances were made was not, in fact, entitled to
indemnification by the corporation.
The indemnification provisions of the Louisiana Business Corporation
Law are not exclusive; however, no corporation may indemnify any person for
willful or intentional misconduct. A corporation has the power to obtain
and maintain insurance, or to create a form of self-insurance on behalf of
any person acting for the corporation, regardless of whether the corporation
has the legal authority to indemnify the insured person against such
liability.
Article V, Section 1 of the By-laws of the Company provides in part
that the Company will indemnify any director or former director of the
Company, any officer or former officer of the Company, or any person serving
at the request of the Company as an officer, director or in any similar
capacity with respect to another entity ("Indemnified Party") against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Indemnified Party in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether made judicially or extra-
judicially, including any action by or in the right of the Company (the
"Claim"), involving an Indemnified Party, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. However, in the
case of actions by or in the right of the Company, the indemnity shall be
limited to expenses (including attorneys' fees and amounts paid in
settlement not exceeding, in the judgment of the board of directors, the
estimated expense of litigating the action to conclusion) actually and
reasonably incurred in connection with the defense or settlement of such
action, and no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty unless and only to
the extent that a court shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the case,
the Indemnified Party is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
The expenses incurred in defending a claim shall be paid by the Company
in advance of the final disposition thereof to an Indemnified Party upon the
receipt of an undertaking by or on behalf of the Indemnified Party to repay
the amount of such advanced expenses if it is ultimately determined that he
or she is not entitled to be indemnified by the Company under the
circumstances. The board of directors may determine, by special resolution,
not to have the Company pay such expenses in advance.
The By-laws also contain provisions permitting the purchase of
insurance to protect officers and directors whether or not the Company would
have the right to indemnify such person for such liability under Louisiana
law.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for 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 section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 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 proceedings) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Orleans, State of Louisiana, on May 23, 1997.
AKORN, INC.
/s/ John N. Kapoor
-----------------------------
John N. Kapoor, Ph.D.
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints John N. Kapoor, Ph.D. and Rita J.
McConville, and each of them acting individually, his true and lawful attorney-
in-fact and agent, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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 the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ John N. Kapoor Chief Executive May 23, 1997
- ----------------------- Officer and Director
John N. Kapoor, Ph.D. (Principal Executive Officer)
/s/ Rita J. McConville Vice President - Finance May 23, 1997
- ----------------------- and Administration
Rita J. McConville (Principal Financial Officer
and Principal Accounting Officer)
/s/ Floyd Benjamin Director May 23, 1997
- -----------------------
Floyd Benjamin
/s/ Daniel E. Bruhl Director May 23, 1997
- -----------------------
Daniel E. Bruhl, M.D.
/s/ Doyle S. Gaw Director May 23, 1997
- -----------------------
Doyle S. Gaw
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description of Exhibits Page
- ------- ----------------------- ----
5 Opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
(included in Exhibit 5).
EXHIBIT 5
Jones, Walker
Waechter, Poitevent
Carrere & Denegre, L.L.P.
July 14, 1997
Akorn, Inc.
100 Tri-State International
Suite 100
Lincolnshire, Illinois 60069-4404
Gentlemen:
We have acted as counsel for Akorn, Inc., a
Louisiana corporation (the "Company"), in connection with
the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the
offering by the Company of 1,000,000 shares (the
"Shares") of common stock, $.01 par value for each share,
pursuant to the terms of the Akorn, Inc. Amended and
Restated 1988 Incentive Compensation Program (the
"Plan").
Based upon the foregoing and upon our examination of
such matters as we deem necessary to furnish this
opinion, we are of the opinion that the Shares have been
duly authorized and, when issued for at least par value
upon the terms described in the Plan and the Registration
Statement, will be validly issued and outstanding, fully
paid and nonassessable.
We consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /s/ Margaret F. Murphy
----------------------------------
Margaret F. Murphy, Partner
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Akorn, Inc. on Form S-8 of our
report dated March 17, 1997, appearing in the Annual
Report on Form 10-K of Akorn, Inc. for the six months
ended December 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New Orleans, Louisiana
July 10, 1997
