As filed with the Securities and Exchange Commission on December ___, 1999.
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHARMACEUTICAL FORMULATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-2367644
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
460 PLAINFIELD AVENUE, EDISON, NEW JERSEY 08818
(Address of Principal Executive Offices) (Zip Code)
1994 STOCK OPTION PLAN
1997 STOCK INCENTIVE PLAN
(Full Title of the Plans)
Clifford H. Straub, Jr.
Pharmaceutical Formulations, Inc.
460 Plainfield Avenue
EDISON, NEW JERSEY 08818
(Name and Address of Agent For Service)
(908) 985-7100
Telephone Number, Including Area Code for Agent For Service
Copies of all correspondence to:
David W. Lowden, Esq.
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
(212) 806-6187
(CONTINUED ON NEXT PAGE)
<PAGE>
(CONTINUATION OF COVER PAGE)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities To Amount To Offering Price Per Aggregate Offering Amount of
Be Registered Be Registered Share (1) Price (1) Registration Fee
================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares (2) $0.22 $110,000 $29.04
$.08 par value
Common Stock, 200,000 shares (3) $0.22 $ 44,000 $11.62
$0.8 par value
================================================================================================================
Total 700,000 $0.22 $144,000 $40.66
================================================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h), based
on the average of the bid and asked prices on December 22, 1999.
(2) Consists of 500,000 additional shares of Common Stock of the Registrant which are issuable
upon exercise of options which have been granted or will be granted under the 1994
Stock Option Plan.
(3) Consists of 200,000 shares of Common Stock of the Registrant which may be issued pursuant
to the 1997 Stock Incentive Plan.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement on Form S-8 of Pharmaceutical
Formulations, Inc. a Delaware corporation (the "Registrant"), covers 700,000
shares of common stock, par value $.08 per share, of the Registrant (the "Common
Stock") consisting of an additional 500,000 shares reserved for issuance under
the Registrant's 1994 Stock Option Plan and 200,000 shares reserved for issuance
under the 1997 Stock Incentive Plan.
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Part I will
be sent or given to participants, as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in the Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act. See Rule 428(a)(1) under the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION
(OMITTED PURSUANT TO PROCEDURE DESCRIBED IN ITEM 1 ABOVE)
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Registrant
(Commission File No. 0-5860) are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended July 3, 1999.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarter
ended October 2, 1999;
(c) The Registrant's Current Reports on Forms 8-K dated June 15, 1999
and July 14, 1999; and
(d) The description of the Common Stock which is contained in the
Registrant's Registration Statement on Form 8-A, filed on
November 3, 1983, filed to register such Common Stock pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a 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
The Registrant's Certificate of Incorporation provides that the
Corporation shall, to the fullest extent permitted by Section 145 of the General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section. Such
indemnification shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in the person's official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. The Corporation shall provide for the advance
payment of all indemnified expenses. The Registrant's Certificate of
Incorporation also contains provisions limiting or eliminating a director's
personal liability to the Registrant or its stockholders for damages arising
from any breach of the director's duty to the Registrant, except in specified
circumstances. Delaware General Corporation Law Section 145, sets forth the
indemnification permitted under Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
(Not Applicable)
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
5.1 Opinion of Stroock & Stroock & Lavan LLP with
respect to the shares of Common Stock registered
hereunder.
24.1 Consent of Counsel to be named in the Registration
Statement. Reference is made to Exhibit 5.1 to this
Registration Statement which contains a copy of this
Consent.
24.2 Consent of BDO Seidman LLP to be named in the
Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is 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 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
(b) The 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
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, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of New York, State of New York, on the 22nd day of
December, 1999.
PHARMACEUTICAL FORMULATIONS, INC.
By: /S/ CLIFFORD H. STRAUB, JR.
------------------------------------------
Clifford Straub, Senior Vice President-Chief
Administrative Officer, Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose signature appears below does hereby make,
constitute and appoint Charles LaRosa and Clifford H. Straub, Jr. and each of
them, his true and lawful attorneys and attorney and agents or agent with full
power and authority on his behalf to execute and file with the Securities and
Exchange Commission any amendment or amendments, including post-effective
amendments, to this registration statement, and he does hereby ratify and
confirm all his said attorneys or attorney and agents or agent may do or cause
to be done by virtue hereof.
SIGNATURE TITLE DATE
/S/ CHARLES LAROSA President (Principal Executive December 22, 1999
- --------------------------- Officer) and Director
Charles LaRosa
/S/ CLIFFORD H. STRAUB, JR. Senior Vice President-Chief December 22, 1999
- --------------------------- Administrative Officer, Chief
Clifford Straub Financial Officer (Principal Financial
Officer and Principal Accounting
Officer)
/S/ RAY CHEESMAN Director December 22, 1999
- ----------------------------
Ray Cheesman
- ---------------------------- Director
John L. Oram
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Counsel.
24.2 Consent of BDO Seidman LLP
EXHIBIT 5.1
STROOCK & STROOCK & LAVAN LLP
180 MAIDEN LANE
NEW YORK, NY 10038-4982
PHONE 212-806-5400
FAX 212-806-6006
Website: WWW.STROOCK.COM
December 16, 1999
Pharmaceutical Formulations, Inc.
460 Plainfield Avenue
Edison, NJ 08818-1904
Ladies and Gentlemen:
We have acted as counsel to Pharmaceutical Formulations, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-8
(the "Registration Statement") relating to the proposed issuance of up to
700,000 shares (the "Original Shares") of the Common Stock, $0.08 par value (the
"Common Stock") of the Company, consisting of an additional 500,000 shares
pursuant to the Company's 1994 Stock Option Plan and 200,000 shares pursuant to
the Company's 1997 Stock Incentive Plan (collectively, the "Plans"), and such
additional shares (the "Additional Shares") as may be issued pursuant to the
antidilution provisions of the Plans. The Original Shares and the Additional
Shares are hereinafter referred to together as the "Shares."
As such counsel, we have examined copies of the Certificate of Incorporation and
By-Laws of the Company, each as amended to the date hereof, the Registration
Statement, the Plans and originals or copies of such other corporate minutes,
records, agreements and other instruments of the Company, certificates of public
officials and other documents, and have made such examinations of law, as we
have deemed necessary to form the basis for the opinion hereinafter expressed.
In our examination of such materials, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies submitted to us. As to
various questions of fact material to such opinion, we have relied, to the
extent we deemed appropriate, upon representations, statements and certificates
of officers and representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the Shares,
when issued under the circumstances contemplated in the Registration Statement
and the Plans, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Stroock & Stroock & Lavan LLP
STROOCK & STROOCK & LAVAN LLP
EXHIBIT 24.2
CONSENT OF INDEPENDENT
PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of our report dated September 22, 1999
relating to the consolidated financial statements and schedule of Pharmaceutical
Formulations, Inc. appearing in the Company's Annual Report on Form 10-K for the
year ended July 3, 1999
/S/ BDO SEIDMAN LLP
BDO SEIDMAN LLP
Woodbridge, New Jersey
December 15, 1999
