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As filed with the Securities and Exchange Commission on July 26, 2000
Registration No. ______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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OSI PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 13-3159796
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
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(Address of principal executive offices) (Zip Code)
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OSI PHARMACEUTICALS, INC.
NON-QUALIFIED STOCK OPTION PLAN
FOR FORMER EMPLOYEES OF
CADUS PHARMACEUTICAL CORP.
AND
OSI PHARMACEUTICALS, INC.
1999 INCENTIVE AND
NON-QUALIFIED
STOCK OPTION PLAN
(Full title of the plan)
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ROBERT L. VAN NOSTRAND
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
OSI PHARMACEUTICALS, INC.
106 CHARLES LINDBERGH BLVD.
UNIONDALE, NEW YORK 11553
(516) 222-0023
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
SPENCER W. FRANCK, JR., ESQUIRE
SAUL, EWING, REMICK & SAUL LLP
CENTRE SQUARE WEST
1500 MARKET STREET, 38TH FLOOR
PHILADELPHIA, PENNSYLVANIA 19102
(215) 972-1955
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See next page for calculation of registration fee.
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate
to be Registered Registered Per Share Offering Price Amount of Registration Fee (5)
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<S> <C> <C> <C> <C>
Common Stock, Par 334,632(1) $ 5.0000 $ 1,673,160.00
Value $.01 Per Share 25,000(2) $14.0000 $ 350,000.00
742,125(3) $23.2500 $ 17,254,406.25
1,257,875(4) $31.78125 $ 39,976,839.84 $15,643.16
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2,359,632 X.000264
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(1) Represents shares issuable upon exercise of options previously granted
under the Non-Qualified Stock Option Plan for Former Employees of Cadus
Pharmaceutical Corp. (the "Cadus Plan").
(2) Represents shares issuable upon exercise of options previously granted
under the Cadus Plan.
(3) Represents shares issuable upon exercise of options previously granted
under the 1999 Incentive and Non-Qualified Stock Option Plan (the "1999
Plan").
(4) Represents shares issuable in connection with options available for
grant under the 1999 Plan.
(5) The registration fee has been computed in accordance with paragraphs
(c) and (h) of Rule 457, based upon, in the case of options previously
granted, the stated exercise price of such options, and, in the case of
options still available for grant, the average of the reported high and
low sale prices of shares of the Registrant's common stock on July 20,
2000.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.(1)
Item 2. Registrant Information and Employee Plan Annual Information.(1)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in clauses (a), (b) and (c) below are
incorporated herein by this reference thereto, and all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by this reference in this registration statement and to be a part
hereof from the date of filing of such documents:
(a) The Registrant's Annual Report on Form 10-K, as
amended, for the fiscal year ended September 30,
1999.
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended December 31, 1999, and March 31,
2000, as amended, and the Registrant's Current
Reports on Form 8-K, dated November 30, 1999, as
amended, February 25, 2000, and June 20, 2000.
(c) The description of the Registrant's common stock
contained in the registration statement filed by the
Registrant to register such securities under Section
12 of the Securities Exchange Act of 1934, including
any amendment or report filed for the purpose of
updating such description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
---------------------------------
(1) The information called for by Part I of this registration statement on Form
S-8 is currently included in the Summary of the Registrant's Non-Qualified
Stock Option Plan for Former Employees of Cadus Pharmaceutical Corp. and the
Summary of the Registrant's 1999 Incentive and Non-Qualified Stock Option
Plan (the "Plans") and will be delivered to eligible persons under the Plans
as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended.
Pursuant to the Note to Part I of Form S-8, this information is not being
filed with or included in this Form S-8.
<PAGE> 4
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or another enterprise if serving such enterprise at the
request of the corporation. Depending on the character of the proceeding, a
corporation may indemnify against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding if the person indemnified
acted in good faith and in a manner he or she reasonably believed to be in or
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 or her
conduct was unlawful. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
that the court shall deem proper. Section 145 further provides that to the
extent a director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to above, or in defense of any claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him or her in
connection therewith.
The Registrant's Certificate of Incorporation provides that
the Registrant shall, to the fullest extent authorized by the General
Corporation Law of Delaware, indemnify any person, or the legal representative
of any person, who is or was a director, officer, employee or agent of the
Registrant or another enterprise if said person served such enterprise at the
request of the Registrant. The Certificate of Incorporation also provides that
any amendment to the General Corporation Law of Delaware shall only be
applicable to the extent any such amendment permits the Registrant to provide
broader indemnification rights than said law permitted the Registrant to provide
prior to such amendment. The Certificate of Incorporation further provides that
in the case of an action, suit or proceeding initiated by the indemnified
person, the Registrant shall indemnify the person only if such action, suit or
proceeding was authorized by the Registrant's Board of Directors. The
Certificate of Incorporation also contains a provision eliminating the liability
of directors of the Registrant to itself or its stockholders for monetary
damages for breach of fiduciary duty except under certain specified
circumstances. The Certificate of Incorporation also permits the Registrant to
maintain insurance to protect itself and any director, officer, employee or
agent against any liability with respect to which the Registrant would have the
power to indemnify such persons under the General Corporation Law of Delaware.
The Registrant maintains an insurance policy insuring its directors and officers
against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The following is a list of exhibits filed as part of the
registration statement:
4.1 Non-Qualified Stock Option Plan for Former Employees
of Cadus Pharmaceutical Corp.
4.2 1999 Incentive and Non-Qualified Stock Option Plan.
5 Opinion of Saul, Ewing, Remick & Saul LLP.
23.1 Consent of KPMG LLP, independent public accountants.
23.2 Consent of Saul, Ewing, Remick & Saul LLP (contained
in Exhibit No. 5).
24 Power of Attorney (included on signature page of the
registration statement).
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;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of 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) 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 the registration statement or
any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii)
above 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
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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.
(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 that is
incorporated by reference in this 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 liability (other than 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.
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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, thereunder duly
authorized, in the City of Uniondale, State of New York, on July 21, 2000.
OSI PHARMACEUTICALS, INC.
By: /s/ Colin Goddard, Ph.D.
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Colin Goddard, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby makes, constitutes and appoints Colin Goddard,
Ph.D. and Robert L. Van Nostrand and each of them, with full power to act
without the other, his true and lawful attorneys-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 and all amendments to this
registration statement on Form S-8, including post-effective amendments, 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 or 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 attorneys-in-fact
and agents or any of them, or any substitute or substitutes, 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.
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Signature Title Date
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/s/ COLIN GODDARD, Ph.D. President and July 21, 2000
------------------------------------------------- Chief Executive Officer
Colin Goddard, Ph.D. and Director
/s/ ROBERT L. VAN NOSTRAND Vice President, Chief July 26, 2000
------------------------------------------------- Financial Officer
Robert L. Van Nostrand (principal financial and
accounting officer)
/s/ GARY E. FRASHIER Chairman of July 26, 2000
------------------------------------------------- the Board of Directors
Gary E. Frashier
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Director ___________
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G. Morgan Browne
JOHN H. FRENCH, II Director July 24, 2000
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John H. French, II
/s/ EDWIN A. GEE, PH.D Director July 22, 2000
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Edwin A. Gee, Ph.D.
/s/ DARYL K. GRANNER, M.D. Director July 21, 2000
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Daryl K. Granner, M.D.
/s/ WALTER M. LOVENBERG, PH.D. Director July 26, 2000
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Walter M. Lovenberg, Ph.D.
/s/ VIREN MEHTA Director July 25, 2000
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Viren Mehta
/s/ STEVEN M. PELTZMAN Director July 24, 2000
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Steven M. Peltzman
/s/ SIR MARK RICHMOND, PH.D Director July 24, 2000
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Sir Mark Richmond, Ph.D.
/s/ JOHN P. WHITE, ESQUIRE Director July 24, 2000
-------------------------------------------------
John P. White, Esquire
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EXHIBIT INDEX
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EXHIBIT NO. EXHIBIT
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4.1 Non-Qualified Stock Option Plan for Former Employees of Cadus
Pharmaceutical Corp.
4.2 1999 Incentive and Non-Qualified Stock Option Plan.
5 Opinion of Saul, Ewing, Remick & Saul LLP.
23.1 Consent of KPMG LLP, independent public accountants.
23.2 Consent of Saul, Ewing, Remick & Saul LLP (contained in Exhibit No. 5).
Power of Attorney (included on signature page of the registration
24 statement).
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