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As filed with the Securities and Exchange Commission on June 25, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYPRESS BIOSCIENCE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 22-2389839
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4350 EXECUTIVE DRIVE, SUITE 325
SAN DIEGO, CALIFORNIA 92121
(619) 452-2323
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
COMMON STOCK PURCHASE WARRANTS
(Full title of the plans)
JAY D. KRANZLER
CHIEF EXECUTIVE OFFICER, CHIEF SCIENTIFIC OFFICER
AND VICE CHAIRMAN OF THE BOARD OF DIRECTORS
CYPRESS BIOSCIENCE, INC.
4350 EXECUTIVE DRIVE, SUITE 325
SAN DIEGO, CALIFORNIA 92121
(619) 452-2323
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
FREDERICK T. MUTO, ESQ.
CARL R. SANCHEZ, ESQ.
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(619) 550-6000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(1) Offering Price(1) Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.02 par value 334,800 $1.875 $627,750 $216.47
=================================================================================================================
</TABLE>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon the actual exercise price for shares subject to
outstanding Common Stock Purchase Warrants previously granted by Registrant as
compensation for services rendered as a director, officer, employee of or
consultant to the Registrant. The following chart shows the calculation of the
registration fee.
<TABLE>
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<S> <C> <C>
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- -------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 334,800 $1.875 $627,750
outstanding common stock purchase warrants
- -------------------------------------------------------------------------------------------------------------
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1995, the Company's Proxy Statement for the 1996 Annual Meeting of
Stockholders filed on March 11, 1996 pursuant to Rule 14a-6 of the Exchange Act,
the Company's Current Report on Form 8-K dated as of January 29, 1996, the
Company's Current Report on Form 8-K dated as of March 8, 1996, the Company's
Current report on Form 8-K dated as of April 1, 1996, the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996, and the Company's
Registration Statement on Form S-3/A (No. 333-01071) dated May 2, 1996 filed by
the Company with the Commission are hereby incorporated by reference in this
Registration Statement except as superseded or modified herein. All documents
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the time a post-effective amendment which indicates that securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents. Any statement
contained in any document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is 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 modified or superseded, to
constitute a part of this Registration Statement.
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 and Bylaws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") and
(ii) require the Registrant to indemnify its directors and officers to the
fullest extent permitted by applicable law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the DGCL,
a corporation generally has the power to indemnify its present and former
directors, officers, employees and
3.
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agents against expenses incurred by them in connection with any suit to which
they are or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in or not opposed to, the best interests of the
corporation and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Registrant believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' or officers' duty
of care, and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under the
DGCL. In addition, each director will continue to be subject to liability
pursuant to Section 174 of the DGCL, for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for acts or omissions
that the director believes to be contrary to the best interests of the
Registrant or its stockholders, for any transaction from which the director
derived an improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Registrant or its stockholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omission that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper loans to directors and
officers. The provision also does not affect a director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
The Registrant has entered into a letter agreement with a certain former
executive officer whereby the Registrant has agreed to pay for expenses
(including attorney's fees) incurred by such executive officer in connection
with an ongoing SEC inquiry in advance of any final disposition of such inquiry.
In the event it is ultimately determined that such executive officer is not
entitled to indemnification under the terms of the Registrant's Bylaws or other
applicable laws or regulations such executive officer is obligated to repay all
amounts advanced by the Registrant on such executive officer's behalf.
The Registrant has an insurance policy covering the officers and directors of
the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
4.
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ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
4.1 Registrant's Amended and Restated Certificate of
Incorporation.(1)
4.2 Registrant's Amended and Restated Bylaws.(2)
4.3 Specimen Stock Certificate.(3)
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.3 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 8.
99.1 Common Stock Purchase Warrant dated June 10, 1991.(3)
- ---------------
(1) Filed as an exhibit to the Registrant's Form 10-Q for the quarter ended
March 31, 1996 filed on May 15, 1996, and incorporated herein by
reference.
(2) Filed as an exhibit to the Registrant's Form 10-K for the year ended
December 31, 1995 filed on February 19, 1996, and incorporated herein
by reference.
(3) Filed as an exhibit to the Registrant's Registration Statement on Form
S-1 (No. 33-41225) and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of
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securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b)
of this chapter) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if this 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 Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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
6.
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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 Securities Act and will be governed by the final
adjudication of such issue.
7.
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SIGNATURES
The Registrant. 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 San Diego, State of California, on June 21,
1996.
CYPRESS BIOSCIENCE, INC.
By /s/ JAY D. KRANZLER
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Jay D. Kranzler, M.D., Ph.D.
Chief Executive Officer and Chief Scientific Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jay D. Kranzler and Susan E. Feiner and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
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 any of
them, or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ JAY D. KRANZLER Chief Executive Officer, Chief June 21, 1996
- ------------------------------- Scientific Officer and Vice
Jay D. Kranzler, M.D., Ph.D. Chairman of the Board
(Principal Executive Officer)
/s/ SUSAN E. FEINER Director of Finance/Controller, June 21, 1996
- ------------------------------- Secretary and Treasurer
Susan E. Feiner (Principal Financial and Accounting Officer)
/s/ DEBBY JO BLANK President, Chief Operating Officer
- ------------------------------- and Director June 21, 1996
Debby Jo Blank, M.D.
/s/ RICHARD M. CROOKS Chairman of the Board June 21, 1996
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Richard M. Crooks, Jr.
/s/ PHILIP J. O'REILLY Director June 21, 1996
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Philip J. O'Reilly
/s/ JACK H. VAUGHN Director June 20, 1996
- -------------------------------
Jack H. Vaughn
</TABLE>
8.
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EXHIBIT 5.1
[COOLEY GODWARD LETTERHEAD]
June 24, 1996
Cypress Bioscience, Inc.
4350 Executive Drive, Suite 325
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Cypress Bioscience, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 334,800 shares of Common
Stock, $.02 par value (the "Shares") issuable upon the exercise of certain
Warrants to Purchase Common Stock (the "Warrants").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Warrants, the Company's Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and the Warrants, will be validly issued, fully paid, and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
Cooley Godward Castro
Huddleson & Tatum
/s/ FREDERICK T. MUTO
- ------------------------------
Frederick T. Muto
45999 v1/SD
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Common Stock Purchase Warrant of Cypress
Bioscience, Inc., formerly IMRE Corporation, of our report dated January 23,
1996, with respect to the consolidated financial statements of IMRE Corporation
included in its Annual Report (Form 10-K/A) for the year ended December 31,
1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------
ERNST & YOUNG LLP
Seattle, Washington
June 20, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Cypress Bioscience, Inc. (formerly IMRE Corporation) on Form S-8 dated June 21,
1996 registering 130,000 shares of Common Stock issuable pursuant to
outstanding common stock purchase warrants, of our report dated March 15, 1994,
on our audit of the consolidated statements of operations, cash flows and
stockholders' equity of Cypress Biosciences, Inc. for the year ended December
31, 1993 included in its Annual Report on Form 10-K/A for the year ended
December 31, 1995, filed with the Securities and Exchange Commission.
/s/ Coopers & Lybrand L.L.P.
- -----------------------------
Seattle, Washington
June 21, 1996
