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REGISTRATION NO. 33-_______________________
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON SEPTEMBER 22, 1995
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHOICE DRUG SYSTEMS, INC.
-------------------------
(Exact Name of Registrant as Specified in its Charter)
New York 11-2310352
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2930 Washington Boulevard, Baltimore, Maryland 21230
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(Address of Principal Executive Offices)
(Zip Code)
CHOICE DRUG SYSTEMS, INC., 1989 STOCK OPTION PLAN
-------------------------------------------------
(Full Name of Plan)
R. Dirk Allison
Chief Executive Officer
Choice Drug Systems, Inc.
2930 Washington Boulevard
Baltimore, Maryland 21230
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(Name and Address of Agent for Service)
(800) 766-2761
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(Telephone number, including area code for agent for service)
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CALCULATION OF REGISTRATION FEE
---------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered(1) Price Per Share(2) Price Fee
---------------- -------------- ------------------- -------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 100,000 $6.5625 $656,250 $227
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(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable pursuant to the antidilution
adjustment provisions of the Plan.
(2) Pursuant to Rule 457, the offering price is estimated solely for the
purpose of calculating the registration fee on the basis of the average of the
high and low prices for the Common Stock on the NASDAQ National Market System
on September 18, 1995.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by
Choice Drug Systems, Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), 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 reference in this Registration
Statement and to be a part thereof from the date of filing of such documents.
Any statement contained in a 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 modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1995, as amended by Form 10-K/A filed June
28, 1995 and Form 10-K/A2 filed June 30, 1995 (the "10-K").
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the 10-K (including the Company's most
recent Quarterly Report on Form 10-Q).
(d) The description of the Common Stock under "Description of
Securities" contained in the Company's Registration Statement
on Form 8-A (File Number 000-2060) including any amendment or
report filed for the purpose of updating such description.
ITEM 6. INDEMNIFICATION.
Under the Company's Certificate of Incorporation, and in accordance
with Section 722 of the New York Business Corporation Law (the "NYBCL"), the
Company will indemnify any person made or threatened to be made a party to an
action or proceeding, whether civil, criminal, administrative or investigative
(other than a "derivative" action by or in the right of the Company to procure
a judgment in its favor) by reason of the fact that such person is or was a
director or officer of the Company, against, judgments, fines, amounts paid in
settlement and reasonable expenses, including attorney's fees actually and
necessarily incurred as a result of such action or
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proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in (or not opposed to) the best interests of the
Company, and, in criminal actions or proceedings, had no reasonable cause to
believe was unlawful. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to amounts paid
in settlement and reasonable expenses (including attorneys' fees) incurred in
connection with the defense or settlement of such an action and then, where the
action is settled or otherwise disposed of or the person is adjudged to be
liable to the Company, only if and to the extent the court in which such action
was brought or, if none, a court of competent jurisdiction determines that such
person is fairly and reasonably entitled to such indemnity and then only for
such expenses as the court deems proper.
The Certificate of Incorporation provides that the Company may
indemnify a director or officer for the expenses incurred in defending the
proceedings specified above, at the conclusion of or in advance of their final
disposition or settlement, and on such terms, to such extent, and subject to
such conditions as the Board of Directors shall determine. The Certificate of
Incorporation also provides that the Company may, in its sole discretion,
indemnify any person who is or was one of its employees or agents or any person
who is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise to the same degree as the foregoing indemnification of
directors and officers. The Certificate of Incorporation also provides that
such persons are presumed to be entitled to indemnification, and that the
burden of proving that such person is not entitled to indemnification is on the
Company. Finally, the Certificate of Incorporation provides that if a written
claim by such person for indemnification is not paid within 30 days, the
claimant may bring suit to recover the unpaid amount, and if successful, may
recover attorneys' fees and expenses.
In addition, the Company may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against and incurred by such person
in such capacity, or arising out of the person's status as such whether or not
the Company would have the power or obligation to indemnify such person against
such liability under the provisions of the NYBCL. The Company maintains
insurance for the benefit of the Company's officers and directors insuring such
persons against certain liabilities, including liabilities under the securities
laws.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on Page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
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ITEM 9. UNDERTAKINGS.
(a) The Company 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 (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 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) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the 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 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
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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) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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
Company 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 Baltimore, State of Maryland, on September 21,
1995.
CHOICE DRUG SYSTEMS, INC.
By: /s/ R. DIRK ALLISON
-------------------------------------
R. Dirk Allison
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears
below hereby appoints R. Dirk Allison and Don Thompson, and each of them, any
one of whom may act without the joinder of the others, as his attorney-in-fact
to execute in the name and behalf of any such person, individually and in the
capacity stated below, and to file all amendments and post-effective amendments
to this Registration Statement, which amendment or amendments may make such
changes and additions in this Registration Statement as such attorney-in-fact
may deem necessary or appropriate.
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 date indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R. Dirk Allison President and Chief Executive Officer September 21, 1995
------------------------------------------------ (Principal Executive Officer)
R. Dirk Allison
/s/ Don H. Thompson Chief Operating Officer, (Principal September 21, 1995
------------------------------------------------ Financial and Accounting Officer),
Don H. Thompson Senior Vice President and Secretary
/s/ Albert Reichmann
------------------------------------------------ Director September 21, 1995
Albert Reichmann
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<TABLE>
<S> <C> <C>
/s/ Joseph Furlong Director September 21, 1995
------------------------------------------------
Joseph Furlong
Director September , 1995
------------------------------------------------
Brendan Ryan
/s/ John Haronian Director September 21, 1995
------------------------------------------------
John Haronian
/s/ John Zucotti Director September 21, 1995
------------------------------------------------
John Zucotti
/s/ Morris A. Perlis Director September 21, 1995
------------------------------------------------
Morris A. Perlis
/s/ Allan C. Silber Director September 21, 1995
------------------------------------------------
Allan C. Silber
/s/ Edward Sonshine Director September 21, 1995
------------------------------------------------
Edward Sonshine
/s/ Gail Wilensky Director September 21, 1995
------------------------------------------------
Gail Wilensky
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Exhibit No. Description of Exhibit
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<S> <C>
4.1 Certificate of Incorporation of the Registrant, filed May 18, 1973 --
incorporated by reference to Exhibit 3A to the Registrant's Annual Report on Form
10-K for fiscal year ended February 29, 1988 (the "1988 Annual Report").
4.2 Certificate of Amendment of Certificate of Incorporation of the Registrant, filed
November 14, 1985 -- incorporated by reference to Exhibit 3B to the 1988 Annual
Report.
4.3 Certificate of Amendment of Certificate of Incorporation of the Registrant, filed
August 10, 1987 -- incorporated by reference to Exhibit 3C to the 1988 Annual
Report.
4.4 Certificate of Amendment of Certificate of Incorporation of the Registrant, filed
December 24, 1992 -- incorporated by reference to Exhibit 3D to the Registrant's
Annual Report on Form 10-K for fiscal year ended February 29, 1992 (the "1992
Annual Report").
4.5 Restated By-Laws of the Registrant -- incorporated by reference to Exhibit 3C to
the Registrant's Annual Report on Form 10-K for fiscal year ended February 28,
1987.
4.6 Resolutions of the Board of Directors of the Registrant, dated May 23, 1990,
amending By-Laws -- incorporated by reference to Exhibit 3E to the Registrant's
Annual Report on Form 10-K for fiscal year ended February 28, 1990.
4.7 Resolutions of the Board of Directors of the Registrant, dated April 29, 1992,
amending By-Laws -- incorporated by reference to Exhibit 3G to the 1992 Annual
Report.
4.8 Resolution of the Board of Directors of the Registrant, dated March 30, 1994,
amending By-Laws -- incorporated by reference to Exhibit 3H to the Registrant's
Annual Report on Form 10-K for fiscal year ended February 28, 1994.
4.9 Specimen Stock Certificate -- incorporated by reference to Exhibit 4A to the
Registrant's Registration Statement on Form S-1 (File No. 33-5249).
5 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23.1 Consent of Arthur Andersen, L.L.P., Independent Public Accountants.
23.2 Consent of Harwell Howard Hyne Gabbert & Manner, P.C. (contained in Exhibit 5)
24 Power of Attorney (see pages II-5 and II-6)
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EXHIBIT 5
September 22, 1995
Choice Drug Systems, Inc.
2930 Washington Boulevard
Baltimore, Maryland 21230
Gentlemen:
We have acted as special counsel to Choice Drug Systems, Inc., (the
"Company") in connection with the registration of 100,000 shares of its common
stock to be issued under the provisions of the Company's 1989 Stock Option Plan
pursuant to a registration statement on Form S-8, as filed with the Securities
and Exchange Commission (the "Registration Statement"). This firm hereby
consents to the filing of this opinion as an exhibit to the Registration
Statement and with agencies of such states and other jurisdictions as may be
necessary in the course of complying with the laws of such states and
jurisdictions regarding the offering and sale of the stock in accordance with
the Registration Statement.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company and
of public officials, and such other information as we have deemed necessary for
purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents;
and (ii) that the parties to such documents have the legal right and power
under all applicable laws, regulations and agreements to enter into, execute,
deliver and perform their respective obligations thereunder.
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Choice Drug Systems, Inc.
September 22, 1995
Page 2
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities being
registered by the Registration Statement will, when sold as contemplated under
the Registration Statement, be legally issued, fully paid and non-assessable.
Our opinion herein is limited solely to the laws of the United States
of America and the corporate law of the State of New York. In rendering the
opinion set forth herein, we have relied upon the documents referenced above
and have made no independent verification or investigation of factual matters
pertaining thereto or to the Company. The opinion expressed herein is subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws now or hereafter in effect relating to or
affecting the rights of creditors generally, judicial discretion, and equitable
principles whether applied pursuant to a proceeding at law or in equity; and no
opinion is expressed with respect to the availability of equitable remedies.
Very truly yours,
HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
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EXHIBIT 23.1
ARTHUR ANDERSEN, L.L.P.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated May 22, 1995,
included in Choice Drug Systems, Inc.'s Form 10-K for the year ended February
28, 1995, and to all references to our Firm included in this registration
statement.
Baltimore, Maryland
September 22, 1995
