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As Filed With the Securities and Exchange Commission on June 30, 1997
Registration No. 333- _______
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NEOTHERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 93-0979187
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
157 Technology Drive, Irvine, California 92618
(Address of Principal Executive Offices)
--------------------------
1991 STOCK INCENTIVE PLAN
(Full title of the plan)
--------------------------
Alvin J. Glasky
President and Chief Executive Officer
NeoTherapeutics, Inc.
157 Technology Drive
Irvine, California 92618
(Name and address of agent for service)
(714) 788-6700
(Telephone number, including area code, of agent for service)
Copy to:
Robert E. Rich, Esq.
Stradling, Yocca, Carlson & Rauth, A Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(Facing page continued on next page)
Exhibit Index is on Page 7
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Offering Amount Of
To Be Registered Registered Per Share(1) Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 346,772 $15.125 $5,244,927.00 $1,589.37
value $.001 per share shares
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457(h), on the basis of the price of securities
of the same class as determined in accordance with Rule 457(c), using
the average of the high and low prices reported by the NASDAQ National
Market on June 24, 1997, 1997.
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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 herein by reference:
(a) The Annual Report on Form 10-KSB of NeoTherapeutics, Inc., a
Colorado corporation and the predecessor of Registrant ("NeoTherapeutics
Colorado") for the fiscal year ended December 31, 1996.
(b) All other reports filed by NeoTherapeutics Colorado or the
Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since the end of the fiscal year covered
by the annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock which is contained
in the Registrant's Registration Statement on Form 8-B filed under the
Securities Exchange Act of 1934 (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents, except as to any portion of any future annual or quarterly report to
stockholders or document which is not deemed filed under such provisions. For
the purposes of this registration statement, any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded 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 so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
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(b) The Registrant's Bylaws provide that the Registrant will indemnify
each person who was or is made a party to any proceeding by reason of the fact
that such person is or was a director or officer of the Registrant against all
expense, liability and loss reasonably incurred or suffered by such person in
connection therewith to the fullest extent authorized by the Delaware General
Corporation Law.
(c) The Registrant's Bylaws also give the Registrant the ability to
enter into indemnification agreements with each of its directors and officers.
The Registrant has entered into indemnification agreements with each of its
directors and officers, which provide for the indemnification of such directors
and officers against any and all expenses, judgments, fines, penalties and
amounts paid in settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 NeoTherapeutics, Inc. 1991 Stock Incentive Plan (Incorporated
by reference to Exhibit 10.2 to the Registration Statement on
Form SB-2 (Registration No. 333-05342-LA) of NeoTherapeutics
Colorado, the predecessor of Registrant).
5.1 Opinion of Stradling, Yocca, Carlson & Rauth.
23.1 Consent of Stradling, Yocca, Carlson & Rauth (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page to 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 (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;
(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 Exchange Act
that are incorporated by reference in the registration statement.
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(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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities 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 Securities 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, thereunto duly
authorized, in the City of Irvine, State of California, on the 27th day of June,
1997.
NEOTHERAPEUTICS, INC.
By: /s/ ALVIN J. GLASKY, PH.D.
---------------------------------
Alvin J. Glasky, Ph.D., President
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of NeoTherapeutics, Inc., do
hereby constitute and appoint Alvin J. Glasky, Ph.D. and Samuel Gulko or either
of them, our true and lawful attorneys-in-fact and agents, each 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, and to file the same, with 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 are necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorney-in-fact and agents, or his 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ ALVIN J. GLASKY, PH.D. Chief Executive Officer, President and June 27, 1997
- --------------------------- Director (principal executive officer)
Alvin J. Glasky, Ph.D.
/s/ SAMUEL GULKO Chief Financial Officer (principal June 27, 1997
- --------------------------- financial and accounting officer)
Samuel Gulko
/s/ MARK J. GLASKY Director June 27, 1997
- ---------------------------
Mark J. Glasky
/s/ Frank M. Meeks Director June 27, 1997
- ---------------------------
Frank M. Meeks
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ PAUL H. SILVERMAN, PH.D., D.SC. Director June 27, 1997
- ---------------------------------------
Paul H. Silverman, Ph.D., D.Sc.
/s/ CAROL O'CLEIREACAIN, PH.D. Director June 27, 1997
- ---------------------------------------
Carol O'Cleireacain, Ph.D.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 NeoTherapeutics, Inc. 1991 Stock Incentive Plan (Incorporated
by reference to Exhibit 10.2 to the Registration Statement on
Form SB-2 (Registration No. 333-05342-LA) of NeoTherapeutics
Colorado, the predecessor to Registrant) .
5.1 Opinion of Stradling, Yocca, Carlson & Rauth.
23.1 Consent of Stradling, Yocca, Carlson & Rauth (Included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page to the
Registration Statement)
</TABLE>
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EXHIBIT 5.1
[STRADLING, YOCCA, CARLSON & RAUTH LETTERHEAD]
June 27, 1997
NeoTherapeutics, Inc.
157 Technology Drive
Irvine, California 92618
RE: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by NeoTherapeutics, Inc., a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 346,772 shares of the Company's common stock,
$.001 par value ("Common Stock"), issuable under the Company's 1991 Stock
Incentive Plan (the "Plan").
We have examined the corporate proceedings heretofore taken and are
familiar with the additional corporate proceedings proposed to be taken by the
Company in connection with the authorization, issuance and sale of the
securities referred to above.
Based on the foregoing, it is our opinion that the 346,772 shares of
Common Stock to be issued under the Plan, when issued against full payment in
accordance with the respective terms and conditions of the Plan, will be legally
and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING, YOCCA, CARLSON & RAUTH
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 to register 346,772
shares of Common Stock relating to the 1997 Stock Incentive Plan of our reports
dated February 14, 1997 included in NeoTherapeutics, Inc.'s Form 10-K for the
year ended December 31, 1996 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
---------------------------
Arthur Andersen LLP
Orange County, California
June 27, 1997
