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Registration No.____________
As filed with the Securities and Exchange Commission on July 24, 1998
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DURAMED PHARMACEUTICALS, INC.
(Exact name of issuer as specified in its charter)
Delaware 11-2590026
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(State of Incorporation) (I.R.S. Employer Identification No.)
7155 East Kemper Road, Cincinnati, Ohio 45249
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(Address of Principal Executive Offices) (Zip Code)
1997 STOCK OPTION PLAN
(Full Title of the Plan)
Timothy E. Hoberg, Esq.
Taft, Stettinius & Hollister
1800 Star Bank Center
Cincinnati, Ohio 45202
(Name and address of agent for service)
Telephone number, including area code,
of agent for service: (513) 381-2838
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum
securities to be offering aggregate Amount of
to be registered price offering registration
registered (1) per share (2) price (2) fee(3)
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<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $5.5625 $8,343,750 $1,197
par value $.01 shares
========================================================================================================
</TABLE>
(1) Includes 770,275 unsold shares transferred from Form S-8 Registration
Statement No. 333-17259. This registration statement also covers such
indeterminable number of additional shares of Common Stock of Duramed
Pharmaceuticals, Inc. as may become issuable with respect to all or any of
the registered shares pursuant to antidilution provisions in the plan.
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(2) Inserted solely for purposes of computing the registration fee and based,
pursuant to Rule 457(h) under the Securities Act of 1933, on the average
of the high and low prices of the Common Stock on July 21, 1998, on the
Nasdaq National Market.
(3) Pursuant to Rule 429(b) represents an aggregate fee of $2,461 less $1,264
attributable to the 770,275 shares transferred from Form S-8 Registration
Statement No. 333-17259 for which the registration fee previously has been
paid. A post-effective amendment to Registration Statement No. 333-17259
is being filed to deregister such shares.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents of the Company are incorporated by
reference into and made a part of this registration statement. In addition, all
documents subsequently filed by the Company pursuant to Sections 13, 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 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.
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since
December 31, 1997; and
(c) The description of the Company's common stock contained in
its Registration Statement on Form 8-A filed on December
11, 1986 under the Securities Exchange Act of 1934.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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The legality of the shares of Common Stock registered hereby has
been passed upon by Taft, Stettinius & Hollister LLP, Cincinnati, Ohio. Timothy
E. Hoberg, a partner in that firm, is Assistant Secretary of the Company.
Partners and associates of that firm beneficially own approximately 16,500
shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers
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Section 145 of the General Corporation Law of the State of
Delaware authorizes the indemnification of directors and officers against
liability incurred by reason of being a director or officer and against expenses
(including attorneys' fees) in connection with defending any action seeking to
establish such liability (i) in the case of third-party claims, if the officer
or director acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation (and, with respect to
any criminal proceeding, had no reasonable cause to believe his conduct was
unlawful), and (ii) in the case of actions by or in the right of the
corporation, if the officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and if such officer or director shall not have been adjudged liable
to the corporation, unless a court otherwise determines.
The Company's Certificate of Incorporation extends similar rights
of indemnification.
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Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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Exhibit
Number
- ------
4.1 Certificate of Designation, Preferences and Rights of Series A
Preferred Stock*
4.2 Certificate of Designation, Preferences and Rights of Series F
Preferred Stock**
5 Opinion of Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney
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* Filed as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1988, and incorporated herein by reference.
** Filed as an exhibit to the Company's annual Report on Form 10-K for the
year ended December 31, 1997, and incorporated herein by reference.
Item 9. Undertakings
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(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;
(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 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.
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(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 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.
(h)* 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.
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* Subparagraph references correspond to the applicable subparagraphs of Item 512
of Regulation S-K.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, 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 Cincinnati, State of Ohio
as of the 23rd day of July, 1998.
DURAMED PHARMACEUTICALS, INC.
By /s/ E. THOMAS ARINGTON
---------------------------------------
E. Thomas Arington, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities indicated as of the 23rd day of July, 1998.
Signature Title
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/s/ E. THOMAS ARINGTON Chairman of the Board, President and
- ------------------------- Chief Executive Officer
E. Thomas Arington (principal executive officer)
/s/ TIMOTHY J. HOLT Senior Vice-President - Finance and
- ------------------------- Administration, Treasurer (principal
Timothy J. Holt financial and accounting officer)
/s/ GEORGE W. BAUGHMAN* Director
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George W. Baughman
/s/ STANLEY L. MORGAN* Director
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Stanley L. Morgan
/s/ S. SUNDARARAMAN Director
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S. Sundararaman
*Pursuant to Power of Attorney
/s/ TIMOTHY J. HOLT
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Timothy J. Holt
Attorney-in-Fact
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Exhibit 5
Taft, Stettinius & Hollister LLP
1800 Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202-3957
July 23, 1998
Securities & Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Duramed Pharmaceuticals, Inc.
1997 Stock Option Plan
----------------------
Dear Sir or Madam:
We have acted as counsel for Duramed Pharmaceuticals, Inc., a Delaware
corporation (the "Corporation"), in connection with its 1997 Stock Option Plan
(the "Plan"). We have examined such documents, records and matters of law as we
have deemed necessary for purposes of this opinion and, based thereupon, we are
of the opinion that the shares of common stock, $.01 par value, of the
Corporation which may be issued and sold pursuant to the Plan will be, when
issued in accordance with the terms of the Plan, duly authorized, validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 to be filed by the Corporation with the
Securities and Exchange Commission to effect registration under the Securities
Act of 1933 of 1,500,000 shares to be issued and sold pursuant to the Plan.
TAFT, STETTINIUS & HOLLISTER LLP
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Duramed Pharmaceuticals, Inc. for the registration of 1,500,000 shares
of its common stock in connection with its 1997 Stock Option Plan of our report
dated March 20, 1998 with respect to the consolidated financial statements and
schedule of Duramed Pharmaceuticals, Inc. for the years ended December 31, 1997,
1996 and 1995, included in the Annual Report (Form 10-K) for 1997 filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Cincinnati, Ohio
July 22, 1998
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Exhibit 24
POWER OF ATTORNEY
We, the undersigned directors of Duramed Pharmaceuticals,
Inc., hereby appoint E. Thomas Arington and Timothy J. Holt, or either of them,
our true and lawful attorneys and agents, to do any and all acts and things in
our names and on our behalf in our capacities indicated below, which said
attorneys and agents, or each of them, may deem necessary or advisable to enable
said corporation to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with a Registration Statement on Form S-8 to be filed in
connection with the corporation's 1997 Stock Option Plan including, without
limitation, power and authority to sign for us, or any of us, in our names in
the capacities indicated below, any and all amendments to such Registration
Statement, and we hereby ratify and confirm all that said attorneys and agents,
or each of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Power of Attorney has been signed below by the following
persons as of the 22nd day of July, 1998, in the capacities indicated:
Signature Title
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/s/ E. THOMAS ARINGTON Chairman of the Board
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E. Thomas Arington
/s/ GEORGE W. BAUGHMAN Director
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George W. Baughman
/s/ STANLEY L. MORGAN Director
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Stanley L. Morgan
/s/ S. SUNDARARAMAN Director
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S. Sundararaman
