<PAGE> 1
As filed with the Securities and Exchange Commission on December 18, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
DURAMED PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2590026
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
7155 EAST KEMPER ROAD
CINCINNATI, OHIO 45249
(513) 731-9900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
E. THOMAS ARINGTON
DURAMED PHARMACEUTICALS, INC.
7155 EAST KEMPER ROAD
CINCINNATI, OHIO 45249
(513) 731-9900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
TIMOTHY E. HOBERG
TAFT, STETTINIUS & HOLLISTER, LLP
1800 STAR BANK CENTER
425 WALNUT STREET
CINCINNATI, OHIO 45202
Approximate date of commencement of proposed sale to public: From time
to time after this Registration Statement shall become effective.
If the only securities being registered on this Form are being offered
pursuant to dividend of interest reinvestment plans, please check the following
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================== ====================== ====================== ====================== ======================
<S> <C> <C> <C> <C>
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
unit (1) price(1)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock, $.01 par 1,401,584 shares $3.91 $5,480,193 $1,524
value per share
======================== ====================== ====================== ====================== ======================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and based on the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
December 17, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 2
DURAMED PHARMACEUTICALS, INC.
1,401,584 SHARES OF COMMON STOCK, $.01 PAR VALUE
--------------
These shares of common stock are being sold by the Selling Shareholders
listed in the "Selling Shareholders Table" on page __. We will not receive any
part of the proceeds from the sale. See "Plan of Distribution."
Our common stock is listed on the NASDAQ National Market under the
symbol "DRMD." On December __, 1998, the reported last sales price of the common
Stock on the NASDAQ National Market was $_______ per share.
Unless the context indicates otherwise, all references to "we," "our,"
the "Company" or "Duramed" refer to Duramed Pharmaceuticals, Inc. and its
subsidiaries. Our principal executive offices are located at 7155 East Kemper
Road, Cincinnati, Ohio 45249. Our telephone number is (513) 731-9900.
--------------
THE SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SEC OR ANY STATE SECURITIES COMMISSION NOR HAVE
THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is December __, 1998
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<PAGE> 3
TABLE OF CONTENTS
-----------------
Section Page
------- ----
Where You Can Find More Information 3
The Company 3
Use of Proceeds 3
Selling Shareholders 4
Plan of Distribution 4
Legal Matters 5
Experts 6
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<PAGE> 4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, NY and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public at the
SEC's web site at http://www.sec.gov.
The SEC allows us to incorporate by reference the information we file
with it, which means we can disclose important information to you by referring
to those documents. The information incorporated by reference is considered to
be a part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of
1934 until the Selling Shareholders sell all of their shares. This prospectus is
part of a registration statement we filed with the SEC (Registration No.
333_______).
+ Annual Report on Form 10K for the fiscal year ended December 31,
1997;
+ Quarterly Reports on Form 10Q for the quarters ended March 31,
1998, June 30, 1998 and September 30, 1998 and Form 10-QA for
the quarter ended March 31, 1998;
+ Current Reports on Form 8K dated February 6, 1998 and
December 18, 1998; and
+ The description of the common Stock contained in our Registration
of Certain Classes of Securities Pursuant to Section 12(b) or (g)
of the Securities Exchange Act of 1934 on Form 8A, dated
December 11, 1986, as amended from time to time.
You may request a coy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address and
phone number:
Chief Financial Officer
Duramed Pharmaceuticals, Inc.
7155 East Kemper Road
Cincinnati, Ohio 45249
# (513) 731-9900
You should rely on information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. The Selling Shareholders will not make an offer
of these shares in any state where the offer is not permitted. You should not
assume that the information in the prospectus or any supplement is accurate as
of any date other than the date on the front of these documents.
THE COMPANY
We currently manufacture and sell a line of prescription generic drug
products in tablet, capsule and liquid forms to customers throughout the United
States. Products sold by us include those of our own manufacture and those which
we market under certain arrangements with other drug manufacturers. We sell our
products to drug wholesalers, private label distributors, drug store chains,
health maintenance organizations, hospitals, nursing homes, retiree
organizations, mail order distributors, other drug manufacturers, mass
merchandisers and governmental agencies.
Duramed is a Delaware corporation formed in 1982. The address of our
principal executive offices is 7155 East Kemper Road, Cincinnati, Ohio 45249 and
its telephone number is (513) 731-9900.
USE OF PROCEEDS
We will receive none of the proceeds from the sale of the shares by the
Selling Shareholders.
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<PAGE> 5
SELLING SHAREHOLDERS
The following information, regarding the number of shares of Common
Stock beneficially owned by the persons listed below as the Selling Shareholders
(the "Selling Shareholders") and the number of shares of the Common Stock being
offered for the account of each Selling Shareholder pursuant to this Prospectus,
has been provided to us by the Selling Shareholders.
<TABLE>
<CAPTION>
============================== ============================ =========================== ============================
<S> <C> <C> <C>
Name of Selling Shareholder Shares of Common Stock Shares of Common Stock to Shares of Common Stock to
Beneficially Owned (1) Be Offered Hereby (2) Be Owned After Completion
of This Offering (3)
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Shepherd Investments 1,589,957 700,792 889,165
International Ltd
- ------------------------------ ---------------------------- --------------------------- ----------------------------
Stark International 1,589,957 700,792 889,165
============================== ============================ =========================== ============================
</TABLE>
(1) Represents the holder's pro rata portion of: (a) 1,778,330 shares of
Common Stock which may be acquired upon conversion of Duramed's 5%
Cumulative Convertible Preferred Stock, Series F (the "Series F
Shares"); and (b) 1,401,584 shares which may be issued in satisfaction
of a cash redemption requirement for the Series F Shares. Series F
Shares were convertible originally into a maximum of 3,580,252 shares
of Common Stock. Of these, 1,801,922 shares of Common Stock have been
issued as of the date of this Prospectus. Any Series F Shares remaining
outstanding after issuance of the maximum number of shares of Common
Stock are to be redeemed for cash. However, Duramed may satisfy this
cash redemption requirement by issuing additional shares of Common
Stock.
(2) Represents the holder's pro rata portion of 1,401,584 shares of Common
Stock which may be issued to such holder, at Duramed's option, in
satisfaction of the cash redemption requirement described in note (1).
(3) After completion of this offering, and assuming no sale of the holder's
pro rata share of the 1,778,330 shares issuable upon conversion of the
Series F Stock, each holder would own beneficially ____% of the shares
of outstanding Common Stock. However, by agreement, no holder may
exercise conversion rights if such action would result in beneficial
ownership of more than 4.9%.
Except as described above, none of the Selling Shareholders has, or in
the past has had, any position, office or relationship with the Company (other
than as a security holder) or any of its affiliates.
PLAN OF DISTRIBUTION
We are registering the Shares on behalf of the Selling Shareholders. As
used herein, Selling Shareholders include donees and pledgees selling shares
received from a named Selling Shareholder after the date of this prospectus. All
costs, expenses and fees in connection with the registration of the shares
offered hereby will be borne by the Company. Brokerage commissions and similar
selling expenses, if any, attributable to the sale of shares will be borne by
the Selling Shareholders. Sales of shares may be effected by Selling
Shareholders from time to time in one or more types of transactions (which may
include block transactions) on the Nasdaq National Market, in the
over-the-counter market, in negotiated transactions, through put or call options
transactions relating to the shares, through the short sale of shares, or a
combination of such methods of sale, at market prices prevailing at the time of
sale, or at negotiated prices. Such transactions may or may not involve brokers
or dealers. The Selling Shareholders have advised us that they have not entered
into any arrangements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their securities, nor is there an
underwriter or coordinating broker acting in connection with the proposed sale
of shares by the Selling Shareholders.
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<PAGE> 6
The Selling Shareholders may effect such transactions by selling shares
directly to purchasers or to or through brokerdealers, which may act as agents
or principals. Such brokerdealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Shareholders and/or the
purchasers of shares for whom such brokerdealers may act as agents or to whom
they sell as principal, or both, which compensation as to a particular
brokerdealer might be in excess of customary commissions.
The Selling Shareholders and any brokerdealers that act in connection
with the sale of Shares might be deemed to be underwriters within the meaning of
Section 2(11) of the Securities Act, and any commissions received by such
brokerdealers and any profit on the resale of the shares sold by them while
acting as principals might be deemed to be underwriting discounts or commissions
under the Securities Act. Because Selling Shareholders may be deemed to be
underwriters within the meaning of Section 2(11) of the Securities Act, the
Selling Shareholders will be subject to prospectus delivery requirements of the
Securities Act. The Company has informed the Selling Shareholders that the
antimanipulative provisions of Regulation M promulgated under the Exchange Act
may apply to their sales in the market.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon
for the Company by Taft, Stettinius & Hollister LLP, 1800 Star Bank Center,
Cincinnati, Ohio 45202. Timothy E. Hoberg, a partner of Taft, Stettinius &
Hollister LLP, is Assistant Secretary of the Company. Partners and associates of
that firm beneficially own approximately 30,000 shares of the Company's Common
Stock.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K
for the year ended December 31, 1997, as set forth in their report, which is
incorporated in this prospectus by reference. Our consolidated financial
statements are incorporated by reference in reliance on their report, given on
their authority as experts in accounting and auditing.
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<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being registered
hereby:
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee................. $ 1,524
Nasdaq National Market listing fee... 17,500
Accounting fees and expenses......... 2,500
Legal fees and expenses.............. 7,500
Printing expenses.................... 500
Miscellaneous........................ 1,000
-----
TOTAL....................... $30,524
=======
</TABLE>
All of the above expenses other than the SEC registration fee and the
Nasdaq listing fee are estimates. The Company has agreed to pay all of these
expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
allows indemnification by the Registrant to any person made or threatened to be
made a party to any proceedings, other than a proceeding by or in the right of
the Registrant, by reason of the fact that such person is or was a director,
officer, employee or agent of the Registrant, or is or was serving at the
request of the Registrant in a similar capacity with another corporation or
other entity, against expenses, including judgments and fines, if that person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Registrant and, with respect to criminal actions,
in which that person has no reasonable cause to believe that such person's
conduct was unlawful. Similar provisions apply to actions brought by or in the
right of the Registrant, except that no indemnification shall be made in such
cases when the person shall have been adjudged to be liable to the Registrant
unless determined otherwise by the court in which the action was brought.
Indemnifications are to be made by a majority vote of directors who are not
parties to the action or the written opinion of independent counsel or by the
stockholders or by the court. Section 145 also authorizes the Registrant to
purchase insurance against such liabilities.
The Registrant's Certificate of Incorporation provides that the
Registrant shall provide indemnification to the fullest extent permitted by
Section 145 of the general Corporation Law of the State of Delaware.
II-1
<PAGE> 8
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement.
Exhibit No.
-----------
4.1 Certificate of Designation, Preferences and Rights of
Series A 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
- ---------------
* 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.
ITEM 17. 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 int he "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 (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,
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.
II-2
<PAGE> 9
*(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.
- ---------------
* Paragraph references correspond to those of Item 512 of Regulation S-K.
II-3
<PAGE> 10
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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN CINCINNATI, OHIO, AS OF THE EIGHTEENTH DAY OF DECEMBER, 1998
DURAMED PHARMACEUTICALS, INC.
BY:/s/ E. Thomas Arington
----------------------------------------
E. Thomas Arington
Chairman of the Board,
President and Chief
Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AS OF THE 18TH DAY OF DECEMBER, 1998.
SIGNATURE TITLE
- --------- -----
/s/ E. Thomas Arington Chairman of the Board, President and
- ----------------------------- Executive Officer
E. Thomas Arington (principal executive officer)
/s/ Timothy J. Holt Senior Vice President, Finance and
- ----------------------------- Administration and Treasurer
Timothy J. Holt (principal financial and accounting officer)
/s/ George W. Baughman* Director
- -----------------------------
George W. Baughman
/s/ Peter R. Seaver* Director
- -----------------------------
Peter R. Seaver
/s/ Jeffrey T. Arington* Director
- -----------------------------
Jeffrey T. Arington
/s/ S. Sundararaman* Director
- -----------------------------
S. Sundararaman
*Pursuant to Power of Attorney
/s/ Timothy J. Holt
- -----------------------------
Timothy J. Holt
Attorney-in-Fact
II-4
<PAGE> 11
INDEX TO EXHIBITS
Exhibit No Description
- ---------- -----------
4.1 Certificate of Designation, Preferences and
Rights of Series A 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
- ------------------------------
* Filed as an exhibit to the Company's Annual Report on Form 10-K for
the year ended December 31, 988 and incorporated herein by reference.
II-5
<PAGE> 1
EXHIBITS 5 and 23.2
Taft, Stettinius & Hollister LLP
1800 Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202-3957
December 18, 1998
Securities & Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sir or Madam:
We have acted as counsel for Duramed Pharmaceuticals, Inc. (the
"Company") in connection with its filing of a Registration Statement on Form S-3
concerning the registration of up to 1,401,584 shares of common stock, $.01 par
value (the "Common Stock"), which may be sold by the Selling Shareholders
identified in the Registration Statement. The shares of Common Stock being
registered may be issued by the Company in satisfaction of cash redemption
requirements related to outstanding shares of the Company's 5% Cumulative
Convertible Preferred Stock, Series F.
It is our opinion that the registration of the shares of Common Stock
covered by the Registration Statement and the issuance of such shares have been
duly authorized by all necessary corporate action by the Company. The shares of
Common Stock which may be issued and sold will be, when issued in accordance
with the terms and conditions of the agreements providing for their issuance,
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
aforesaid Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the Prospectus.
Yours very truly,
/s/ Taft, Stettinius & Hollister LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Duramed
Pharmaceuticals, Inc., for the registration of 1,401,584 shares of its common
stock and to the incorporation by reference therein 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 for 1997 filed with the Securities and
Exchange Commission.
Cincinnati, Ohio
December 17, 1998
<PAGE> 1
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 name 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 o Form S-3 relating to the
registration of shares of the Common Stock of the corporation to be offered by
certain Selling Shareholders, including, without limitation, power and authority
to sign for us, or any of us, in our names in the capacities indicated below,
such Registration Statement as well as any and all amendments (including
post-effective amendments) thereto, 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, this Power
of Attorney has been signed below by the following persons in the capacities
indicated as of the 11th day of December, 1988.
Signatures Title
- ---------- -----
Director
- -----------------------------
/s/ George W. Baughman Director
- -----------------------------
George W. Baughman
/s/ Peter R. Seaver Director
- -----------------------------
Peter R. Seaver
/s/ Jeffrey T. Arington Director
- -----------------------------
Jeffrey T. Arington
/s/ S. Sundararaman Director
- -----------------------------
S. Sundararaman
