<PAGE>
As filed with the Securities and Exchange Commission on November 3, 1998
Registration No. 333 - _______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------
ROBERTS PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
New Jersey 22-2429994
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
(Address, including Zip Code, of Registrant's Principal Executive Offices)
--------------------------
ROBERTS PHARMACEUTICAL CORPORATION 1996 EQUITY INCENTIVE PLAN
ROBERTS PHARMACEUTICAL CORPORATION EMPLOYEES SAVINGS AND PROTECTION PLAN
(Full Title of the Plans)
--------------------------
JOHN T. SPITZNAGEL
President and Chief Executive Officer
Roberts Pharmaceutical Corporation
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
(732) 676-1200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
Copies to:
JOHN A. AIELLO, ESQ.
Giordano, Halleran & Ciesla
A Professional Corporation
P.O. Box 190
125 Half Mile Road
Middletown, New Jersey 07748
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
Proposed Proposed maximum
Title of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered (3)(4) price per share (5) price (5) registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $ 21.94 $ 32,910,000 $ 9,148.98
$.01 par value (1)
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Options to purchase 1,500,000 ---- ---- ----
Common Stock (1)
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Common Stock, 500,000 $ 21.94 $ 10,970,000 $ 3,049.66
$.01 par value (2)
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TOTAL REGISTRATION FEE $ 12,198.64
===============
</TABLE>
(1) Under the Roberts Pharmaceutical Corporation 1996 Equity Incentive Plan
(the "Equity Incentive Plan").
(2) Under the Roberts Pharmaceutical Corporation Employees Savings and
Protection Plan (the "401(k) Plan").
(3) An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the Equity Incentive Plan become
operative upon the occurrence of certain corporate transactions or events
including, without limitation, a stock dividend or stock split.
(4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
401(k) Plan. Pursuant to Rule 457 (h) (2) under the Securities Act, no
separate registration fee is required with respect to the plan interests
being registered hereby.
(5) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act and based upon the
average of the high and low sale prices for a share of Roberts
Pharmaceutical Corporation Common Stock as reported on the American Stock
Exchange on October 28, 1998.
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<PAGE>
PART I.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 AND 2.
The documents containing the information about the Roberts Pharmaceutical
1996 Equity Incentive Plan (the "Equity Incentive Plan") and the Roberts
Pharmaceutical Corporation Employees Savings and Protection Plan (the "401(k)
Plan") required by Part I of Form S-8 have been or will be sent or given to the
participants in each such plan as specified by Rule 428 (b) (1) of Regulation C
under the Securities Act of 1933, as amended (the "Securities Act"), and such
documents taken together with the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of Form S-8 shall
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Certain information included in the Section 10(a) Prospectus and other
Company filings under the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), contains or may contain forward looking
information that is subject to certain risks, trends and uncertainties that
could cause actual results to differ materially from expected results.
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 this Registration Statement
as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) From the date of filing of such documents, all other reports filed by
the Company and the 401(k) Plan, where applicable, with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act since December 31, 1997,
including, without limitation, the Company's Quarterly Reports on Form 10-Q for
the quarterly periods ended March 31 and June 30, 1998.
(c) The description of the Company's Common Stock contained in Amendment
No. 2 to the Company's Registration Statement on Form S-3 as filed with the
Commission on September 27, 1993, including any amendment or report filed for
the purpose of updating such description.
(d) All documents subsequently filed by the Company and the 401(k) Plan,
where applicable, pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all of the 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 made a part hereof
from the date of the filing of such documents.
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<PAGE>
Any statement contained in this Registration Statement or in a document
incorporated by reference herein, shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document which also is
incorporated or 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. INTEREST OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
The following summary describes the relevant terms and conditions with
respect to the indemnification of a corporate agent of the Company (the
"Corporate Agent"), including, without limitation, any person who is or was a
director, officer, employee or agent of the Company, pursuant to Article VI of
the Company's By-Laws (the "By-Laws") and Section 14A:3-5 of the New Jersey
Business Corporation Act (the "Corporation Act").
The Company shall indemnify a Corporate Agent against the Corporate Agent's
expenses and liabilities in connection with any proceeding involving the
Corporate Agent by reason of being or having been a Corporate Agent of the
Company, other than a proceeding by or in the right of the Company, if (a) such
Corporate Agent acted in good faith and in a manner that the Corporate Agent
reasonably believed to be in or not opposed to the best interests of the
Company, and (b) with respect to any criminal proceeding, such Corporate Agent
had no reasonable cause to believe that such conduct was unlawful.
In a proceeding by or in the right of the Company, a Corporate Agent shall
be indemnified by the Company for any expenses and liabilities incurred if the
Corporate Agent acted in good faith and in a manner that the Corporate Agent
reasonably believed to be in or not opposed to the best interests of the
Company. However, if the Corporate Agent is adjudged to be liable to the
Company, there shall be no indemnification of the Corporate Agent's expenses and
liabilities unless and only to the extent that the New Jersey Superior Court, or
the court in which such proceeding is brought, shall determine upon application
that such Corporate Agent is fairly and reasonably entitled to indemnity for
such expenses and liabilities.
Unless ordered by a court, the Company will indemnify a Corporate Agent
against expenses and liabilities only as authorized in a specific case upon a
determination by (a) a majority vote of a quorum of the Board of Directors of
the Company or a committee thereof, consisting of directors who were not parties
to or otherwise involved in the proceedings, or (b) by independent legal
counsel, or (c) by the shareholders of the Company, that indemnification is
proper in the circumstances because the Corporate Agent met the applicable
standard of conduct set forth above.
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<PAGE>
No indemnification shall be made by the Company to or on behalf of a
Corporate Agent if a judgment or other final adjudication adverse to the
Corporate Agent establishes that the Corporate Agent's acts or omissions (a)
were in breach of the Corporate Agent's duty of loyalty to the Company or its
shareholders, (b) were not in good faith or involved a knowing violation of law,
or (c) resulted in receipt by the Corporate Agent of an improper personal
benefit.
The Company shall indemnify a Corporate Agent against expenses if the
Corporate Agent is successful on the merits or otherwise in any proceeding
involving the Corporate Agent by reason of being or having been a Corporate
Agent of the Company.
The Company may pay the expenses incurred by a Corporate Agent in
connection with a proceeding in advance of the final disposition of the
proceeding as authorized by the Company's Board of Directors upon receipt of an
undertaking by or on behalf of the Corporate Agent to repay such amount if it is
ultimately determined that the Corporate Agent is not entitled to such
indemnification.
The Company may purchase and maintain insurance on behalf of any Corporate
Agent against any such expenses and liabilities.
If upon application for indemnification by a Corporate Agent the Company
refuses to provide indemnification or advance payment of expenses to the
Corporate Agent as required or permitted under the By-Laws, the Corporate Agent
may apply to a court for an award of such indemnification and the payment in
advance of such expenses by the Company.
The indemnification and advancement of expenses provided pursuant to
Article VI of the Company's By-Laws shall not exclude any other rights to which
a Corporate Agent may be entitled under or pursuant to the Company's Restated
Certificate of Incorporation (the "Certificate of Incorporation"), other
articles of the By-Laws, an agreement, vote of shareholders, the Corporation Act
or otherwise.
With respect to provisions included in the Company's Certificate of
Incorporation limiting the liability of officers and directors of the Company,
Article 7.01 of the Company's Certificate of Incorporation provides that to the
fullest extent permitted by the laws of the State of New Jersey, as they exist
or may hereafter be amended, the directors and officers of the Company shall not
be personally liable to the Company or its shareholders for damages as a result
of a breach of any duty owed to the Company or its shareholders, except that a
director or officer shall not be relieved from liability for any breach of duty
based upon an act or omission (a) in breach of such person's duty of loyalty to
the Company or its shareholders, (b) not in good faith or involving a knowing
violation of law, or (c) resulting in receipt by such person of an improper
personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
-5-
<PAGE>
ITEM 8. EXHIBITS.
---------
<TABLE>
<S> <C>
EXHIBIT NUMBER DESCRIPTION
- ------------------------- -----------------------------------------------------
5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of PricewaterhouseCoopers L.L.P.
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed with Exhibit 5).
24. Power of attorney (filed with signature pages).
</TABLE>
The Company has submitted the 401(k) Plan to the Internal Revenue Service
("IRS") and has received from the IRS a determination that the 401(k) Plan is
qualified under Section 401 of the Internal Revenue Code (the "Code"), and the
Company hereby undertakes to submit any amendment to the 401(k) Plan to the IRS
in a timely manner and to make all changes, if any, required by the IRS in order
to qualify the 401(k) Plan under Section 401 of the Code.
ITEM 9. UNDERTAKINGS.
-------------
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; (ii) to reflect
in such 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; and (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 (i) and (ii)
herein do not apply if the information required to be included in a post-
effective amendment by such provisions 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 this 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.
(4) 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 the
401(k) Plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in this Registration Statement shall
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<PAGE>
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.
(5) That, 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 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 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 Securities Act and will be governed by the final adjudication
of such issues.
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<PAGE>
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 Township of Eatontown, State of New Jersey, on the 3rd day
of November 1998.
ROBERTS PHARMACEUTICAL CORPORATION
(Registrant)
By: /s/ John T. Spitznagel
-----------------------
John T. Spitznagel
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John T. Spitznagel his or her true and lawful
attorney-in-fact and agent for him or her and in his or her name, place and
stead, in any and all capacities to sign any and all amendments (including post-
effective amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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
<S> <C> <C>
/s/ John T. Spitznagel President, Chief Executive Officer and Novmeber 3, 1998
- ------------------------------------- Director (Principal Executive Officer)
John T. Spitznagel
/s/ Peter M. Rogalin Vice President, Treasurer, Chief Financial November 3, 1998
- ------------------------------------- Officer and Director (Principal Financial
Peter M. Rogalin and Accounting Officer)
/s/ Robert A. Vukovich Director November 3, 1998
- -------------------------------------
Robert A. Vukovich, Ph.D.
/s/ Robert W. Loy Director November 3, 1998
- -------------------------------------
Robert W. Loy
/s/ Digby W. Barrios Director November 3, 1998
- -------------------------------------
Digby W. Barrios
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Zola P. Horovitz Director November 3, 1998
- -------------------------------------
Zola P. Horovitz, Ph.D.
/s/ Joseph N. Noonburg Director November 3, 1998
- -------------------------------------
Joseph N. Noonburg
/s/ Marilyn Lloyd Director November 3, 1998
- -------------------------------------
Marilyn Lloyd
/s/ Joseph Smith Director November 3, 1998
- -------------------------------------
Joseph Smith
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------------------------- ----------------------------------------------------
<S> <C>
5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of PricewaterhouseCoopers L.L.P.
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed with Exhibit 5).
24. Power of attorney (filed with signature pages).
</TABLE>
<PAGE>
[LETTERHEAD OF GIORDANO, HALLERAN & CIESLA]
EXHIBIT 5
November 3, 1998
Roberts Pharmaceutical Corporation
Meridian Center II
4 Industrial Way West
Eatontown, New Jersey 07724
Re: Registration Statement on Form S-8 relating to the Roberts
Pharmaceutical Corporation 1996 Equity Incentive Plan, as Amended, and
the Roberts Pharmaceutical Corporation Employees Savings and
Protection Plan
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 under the Securities Act
of 1933, as amended (the "Registration Statement"), filed on this date by
Roberts Pharmaceutical Corporation (the "Company") with the Securities and
Exchange Commission (the "Commission"), to which this opinion letter is attached
as an exhibit, for the registration of an additional 1,500,000 shares of Roberts
Pharmaceutical Corporation Common Stock, $.01 par value per share ("Common
Stock"), which have been reserved for issuance under the Roberts Pharmaceutical
Corporation 1996 Equity Incentive Plan, as amended (the "Equity Incentive
Plan").
We have examined the original or a photostatic or certified copy of such
documents, records, and other information as we deemed relevant and necessary as
the basis for the opinion set forth below. In such examination, we have assumed
the authenticity of each document submitted to us as an original, the conformity
to the original document of each document submitted to us as a certified of
photostatic copy, and the authenticity of the original of each such latter
document. In addition, we have assumed, in rendering the opinion set forth
below, that any stock certificate evidencing any shares of the Company's Common
Stock registered by this Registration Statement, when issued under the Equity
Incentive Plan, will have been duly
<PAGE>
GIORDANO, HALLERAN & CIESLA
A Professional Corporation
ATTORNEYS AT LAW
Roberts Pharmaceutical Corporation
November 3, 1998
Page 2
executed on behalf of the Company and will have been countersigned by the
Company's transfer agent and registered by the Company's registrar prior to its
issuance.
On the basis of our examination mentioned above, subject to the assumptions
stated and relying on statements of fact contained in the documents that we have
examined, we are of the opinion that the shares of Common Stock registered
pursuant to the Registration Statement have been duly and validly authorized and
reserved for issuance and that upon the issuance of such shares in accordance
with the provisions of the Equity Incentive Plan, the shares of Common Stock
will be validly issued, fully paid and non-assessable.
In addition to the shares of the Company's Common Stock being registered
pursuant to the Equity Incentive Plan, 500,000 shares of the Company's Common
Stock are being registered with respect to the Roberts Pharmaceutical
Corporation Employees Savings and Protection Plan (the "401(k) Plan") in
connection with a company stock fund which is being added as an investment
option under the 401(k) Plan. We have been advised by the Company that the
shares of Common Stock to be acquired by the 401(k) Plan will be purchased in
open market transactions. Accordingly, as the shares of the Company's Common
Stock to be acquired by the 401(k) Plan will not be original issuance shares, we
are not required to and do not express any opinion as to the legality of such
shares of the Company's Common Stock which are being registered with respect to
the 401(k) Plan.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required by Section 7 of the Securities
Act of 1933, as amended, or the General Rules and Regulations of the Securities
and Exchange Commission.
Very truly yours,
GIORDANO, HALLERAN & CIESLA
A Professional Corporation
<PAGE>
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Roberts Pharmaceutical Corporation on Form S-8 to be filed on November 3, 1998
of our report dated February 5, 1998, on our audits of the consolidated
financial statements of Roberts Pharmaceutical Corporation and Subsidiaries as
of December 31, 1997, 1996 and 1995 and for each of the three years in the
period ended December 31, 1997, which report is included in the Corporation's
1997 Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Florham Park, New Jersey
November 3, 1998
