As Filed With the Securities and Exchange Commission on
September 9, 1994
File No. _____________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SYNERGEN, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-0868248
(State or of incorporation) (I.R.S. Employer Identification No.)
885 33rd Street, Boulder, Colorado 80301
(Address of principal executive offices) (Zip Code)
SYNERGEN, INC. STOCK OPTION AGREEMENT (Effective January 29, 1994)
SYNERGEN, INC. DIRECTOR RETAINER FEE GRANTS
(Full title of the Plan)
Gregory B. Abbott, Chief Executive Officer,
Synergen, Inc., 1885 33rd Street, Boulder, Colorado 80301
(Name and address of agent for service)
(303) 938-6200
(Telephone number, including area code, of agent for service)
With copies to:
Francis R. Wheeler, Esq., Holme Roberts & Owen LLC., 1700 Lincoln,
Suite 4100, Denver, Colorado 80203 (303) 861-7000
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities to Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock 15,000(2) $14.00 $210,000 $72.41
($.01 par Value)10,000(2) $ 4.8125 $ 48,125 $16.60
Total $100.00(3)
</TABLE>
(1)Estimated solely for the purpose of calculating the
registration fee for the shares being registered hereby
pursuant to Rule 457 based on (a) an exercise price of
$14.00 per share for 15,000 shares of Common Stock that
may be acquired upon exercise of the outstanding option
under the Stock Option Agreement and (b) a grant price
of $4.8125 per share (the average of the high and low
sales price for Common Stock on September 6, 1994 as
reported on the NASDAQ National Market) for up to 10,000
shares of Common Stock that may be acquired by directors
upon their election to receive Common Stock in lieu of cash
in payment of their retainer fee.
(2)15,000 and 10,000 shares are covered by the Stock Option
Agreement and the Director Retainer Fee Grants, respectively.
(3)Pursuant to Section 6(b), the registration fee for the
shares being registered hereby shall be $100.
II-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference
in the Registration Statement:
(1) Synergen's Annual Report on Form 10-K for the
year ended December 31, 1993,
File No. 0-14339;
(2) its Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994, File No. 0-14339;
(3) its Quarterly Report on Form 10-Q for the quarter ended
June 30, 1994, File No. 0-14339;
(4) its Curent Report on Form 8-K, filed June 2, 1994,
File No. 0-14339;
(5) its Curent Report on Form 8-K, filed July 21, 1994,
File No. 0-14339;
(6) its Current Report on Form 8-K filed August 10, 1994,
File No. 0-14339;
(7) all documents subsequently filed by Synergen
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.
Item 4. Description of Securities
The description of the Common Stock to be issued is
incorporated by reference from Synergen's Registration
Statements on Form 8-A dated March 20, 1986 and
November 4, 1991 (as amended by its Form 8 Amendment
dated November 6, 1991).
Item 5. Interests of Named Experts and Counsel
The legality of the shares of Common Stock will be passed on for the
Company by Holme Roberts & Owen LLC, Denver, Colorado.
Attorneys of Holme Roberts & Owen LLC beneficially own
approximately 11,728 shares of Common Stock and a warrant to
purchase 900 shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides, in part, that a corporation has the power to
indemnify any person who was or is a party or is threatened to be made a
party to any suit or proceeding because such person is or was a
director, officer, employee or agent of the corporation or was serving,
at the request of the corporation, as a director, officer, employee or
agent of another corporation, against all costs actually and reasonably
incurred by such person in connection with such suit or proceeding if
the person acted ingood faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. Similar
indemnity may be provided to such persons in connection with an action
or suit by or in the right of the corporation, provided such person
acted in good faith and in a manner he believed to be in or not opposed
to the best interests of the corporation, and provided further (unless a
court of competent jurisdiction otherwise provides) that such person has
not been held liable to the corporation in connection with such matter.
Synergen's Certificate of Incorporation provides
that a director shall not be liable to Synergen or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to
the extent arising from (a) a breach of the director's duty of loyalty,
(b) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (c) the unlawful payment of
dividends or the unlawful purchase or redemption of stock or (d) a
transaction where the director received an improper personal benefit.
Under its Bylaws, Synergen must indemnify any
director, officer, agent or employee against expenses incurred in
connection with any action, suit or proceeding brought by a third party
or on behalf of Synergen, provided that Synergen determines that the
indemnified party acted in good faith and in the best interests of
Synergen, and had no reasonable cause to believe his or her conduct was
unlawful and, in the case of an action brought by or on behalf of
Synergen, that the indemnified party has not been held liable for
negligence or misconduct in the performance of his or her duty to
Synergen. Synergen also maintains insurance coverage for its officers
and directors.
The above discussion of Synergen's Certificate of
Incorporation and Bylaws, Section 145 of the General Corporation Law of
Delaware and Synergen's insurance policy is intended to be only a
summary.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
4.1 Restated Certificate of Incorporation of Synergen, Inc.
effective as of June 24, 1991 (2)
4.2 Certificate of Amendment to the Certificate of Incorporation of
Synergen, Inc. effective as of June 17, 1992 (4)
4.3 Amended and Restated Bylaws of Synergen, Inc. effective
as of October 11, 1983 (1)
4.4 Form of Common Stock Certificate (1)
4.5 Rights Agreement, dated as of October 24, 1991, between
Synergen, Inc. and Manufacturers Hanover Trust Company of
California, as Rights Agent (3)
4.6 Form of Certificate of Designations of Series A Junior
Participating Preferred Stock of Synergen, Inc. (3)
5.1 Legality opinion of Holme Roberts & Owen LLC
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Holme Roberts & Owen LLC is contained in its legality
opinion filed as Exhibit 5.1
24.1 Powers of Attorney
(1)Incorporated by reference herein from the Registration
Statement on Form S-1 of Synergen, Inc. filed January 30, 1986; file
number 33-3005.
(2)Incorporated by reference herein from the Registration
Statement on Form S-4 of Synergen, Inc. filed July 18, 1991 (as amended
by Amendments filed August 5, 1991, September 9, 1991, November 7, 1991,
November 13, 1991, January 31, 1992 and April 29, 1992); file number 33-
41797.
(3)Incorporated by reference herein from the Registration
Statement on Form 8-A of Synergen, Inc. filed November 5, 1991 (as
amended by the Form 8 Amendment of Synergen, Inc. filed November 7,
1991); file number 0-14339.
(4)Incorporated by reference herein from the Registration
Statement on Form S-8 of Synergen, Inc. filed September 11, 1992; file
number 33-51918.
Item 9. Undertakings
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;
(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.
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 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.
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 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.
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 Boulder,
State of Colorado, on September 8, 1994.
SYNERGEN, INC.,
a Delaware corporation
By s/ Kenneth J. Collins
Kenneth J. Collins
Executive Vice President-Finance and Administration
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.
Signature Title Date
*s/ Gregory B. Abbott
Gregory B. Abbott Chief Executive Officer September 8, 1994
and Director
(Principal Executive Officer)
*s/ Larry Soll
Larry Soll Chairman of the Board September 8, 1994
and Director
*s/ Robert C. Thompson
Robert C. Thompson Executive Vice President- September 8, 1994
Research and Clinical Affairs
and Director
*s/ Arthur H. Hayes, Jr.
Arthur H. Hayes, Jr. Director September 8, 1994
*s/ David I. Hirsh
David I. Hirsh Director September 8, 1994
*s/ Barry MacTaggart
Barry MacTaggart Director September 8, 1994
*s/Glenn S. Utt, Jr.
Glenn S. Utt, Jr. Director September 8, 1994
s/Kenneth J. Collins
Kenneth J. Collins Executive Vice President September 8, 1994
Finance and Administration
(Principal Accounting Officer
and Principal Financial Officer)
*By /s Kenneth J. Collins
Kenneth J. Collins, Attorney-in-fact
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description Page (NA)
4.1 Restated Certificate of Incorporation of Synergen,
Inc. effective as of June 24, 1991 (2)
4.2 Certificate of Amendment to the Certificate of
Incorporation of Synergen, Inc. effective as of
June 17, 1992 (4)
4.3 Amended and Restated Bylaws of Synergen, Inc.
effective as of October 11, 1983 (1)
4.4 Form of Common Stock Certificate (1)
4.5 Rights Agreement, dated as of October 24, 1991,
between Synergen, Inc. and Manufacturers Hanover
Trust Company of California, as Rights Agent (3)
4.6 Form of Certificate of Designations of Series A
Junior Participating Preferred Stock of Synergen,
Inc. (3)
5.1 Legality opinion of Holme Roberts & Owen LLC
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Holme Roberts & Owen LLC is contained
in its legality opinion filed as Exhibit 5.1
24.1 Powers of Attorney
____________________
(1) Incorporated by reference herein from the Registration Statement
on Form S-1 of Synergen, Inc. filed January 30, 1986; file number
33-3005.
(2) Incorporated by reference herein from the Registration Statement
on rm S-4 of Synergen, Inc. filed July 18, 1991 (as amended by
Amendments filed August 5, 1991, September 9, 1991, November 7,
1991, November 13, 1991, January 31, 1992 and April 29, 1992);
fle number 33-41797.
(3) Incorporated by reference herein from the Registration Statement
on Form 8-A of Synergen, Inc. filed November 5, 1991 (as amended
by the Form 8 Amendment of Synergen, Inc. filed November 7,
1991); file number 0-14339.
(4) Incorporated by reference herein from the Registration Statement
on Form S-8 of Synergen, Inc. filed September 11, 1992; file
number 33-51918.
EXHIBIT 5.1
0PINION OF LEGALITY
Holme Roberts & Owen LLC
1700 Lincoln, Suite 4100
Denver, CO 80203
September 7, 1994
Synergen, Inc.
1885 33rd Street
Boulder, CO 80301
Ladies and Gentlemen:
Reference is made to the registration statement on
Form S-8 filed with the Securities and Exchange Commission
(the "Commission") on September 7, 1994 (the "Registration
Statement") by Synergen, Inc., a Delaware corporation (the
"Company"), for the purpose of registering under the
Securities Act of 1933, as amended (the "Act"), 25,000 shares
of its common stock, $0.01 par value (the "Common Stock").
As counsel for the Company, we have examined such
documents and reviewed such questions of law as we have
considered necessary or appropriate for the purpose of this
opinion. Based on the foregoing, we are of the opinion that
the shares of Common Stock, when sold and delivered by the
Company pursuant to the Company's Stock Option Agreement with
Barry MacTaggart and the Company's arrangement for grants of
Common Stock to Directors in lieu of retainer fees covered by
the Registration Statement, will be validly issued, fully paid
and nonassessable.
We consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement and to
the reference to us under the caption "Interests of Named
Experts and Counsel." In giving this consent, we do not
thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Act or under the
rules and regulations of the Commission.
We do not express an opinion on any matters other
than those expressly set forth in this letter.
Very truly yours,
HOLME ROBERTS & OWEN LLC
s/Nick Nimmo
By: Nick Nimmo
Member
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Synergen, Inc. on Form S-8 of our
reports dated February 4, 1994, appearing in and incorporated
by reference in the Annual Report on Form 10-K of Synergen,
Inc. for the year ended December 31, 1993.
DELOITTE & TOUCHE LLP
Denver, Colorado
September 8, 1994
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Kenneth J.
Collins and Gregory B. Abbott, and each of them, his attorneys-
in-fact, with full power of substitution, for him in any and all
capacities, to sign a registration statement to be filed with the
Securities and Exchange Commission (the "Commission") on Form S-8
in connection with the offering by Synergen, Inc., a Delaware
corporation (the "Company"), of 25,000 shares of the Company's
common stock, par value $.01 per share ("Common Stock") and all
amendments (including post-effective amendments) thereto, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission; and to sign all
documents in connection with the qualification and sale of the
Common Stock with Blue Sky authorities and with the National
Association of Securities Dealers, Inc.; granting unto said
attorneys-in-fact full power and authority to perform any other
act on behalf of the undersigned required to be done in the
premises, hereby ratifying and confirming all that said
attorneys-in-fact may lawfully do or cause to be done by virtue
hereof.
Date: July 18, 1994 s/Larry Soll
Larry Soll
Date: July 31, 1994 s/Gregory B. Abbott
Gregory B. Abbott
Date: July 31, 1994 s/Robert C. Thompson
Robert C. Thompson
Date: May 31, 1994 s/Arthur H. Hayes, Jr.
Arthur H. Hayes, Jr.
Date: May 31, 1994 s/David I. Hirsh
David I. Hirsh
Date: May 31, 1994 s/Barry MacTaggart
Barry MacTaggart
Date: May 31, 1994 s/Glenn S. Utt, Jr.
Glenn S. Utt, Jr.
Date: July 31, 1994 s/Kenneth J. Collins
Kenneth J. Collins
