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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1999
REGISTRATION STATEMENT NO. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AVANIR PHARMACEUTICALS
(Exact name of registrant as specified in its charter)
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<S> <C>
CALIFORNIA 33-0314804
(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
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9393 Towne Centre Drive, Suite 200
San Diego, California 92121
(Address of Principal Executive Offices, Zip Code)
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1994 STOCK OPTION PLAN
(Full title of the plan)
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DR. GERALD J. YAKATAN,
9393 TOWNE CENTRE DRIVE, SUITE 200
SAN DIEGO, CALIFORNIA 92121
(619) 558-0364
(Name, address, and telephone number, including area code, of agent for service)
-----------------
Copies to:
JOHN J. HENTRICH, ESQ.
BAKER & MCKENZIE
101 WEST BROADWAY, TWELFTH FLOOR
SAN DIEGO, CALIFORNIA 92101
(619) 236-1441
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CALCULATION OF REGISTRATION FEE
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- ------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) SHARE PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, no par
value per share............ 900,000(2) $0.7656(3) $689,063(3) $191.56
- ------------------------------------------------------------------------------------------------------------------------------
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(1) This Registration Statement also shall cover any additional shares of Class
A Common Stock that become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration that results in an increase in the number of the
Registrant's outstanding shares of Class A Common Stock.
(2) Represents the following shares of Class A Common Stock available for
issuance under the Registrant's 1994 Stock Option plan: (a) 250,000 shares
of Class A Common Stock pursuant to an amendment approved by the
shareholders at the Registrant's Annual Meeting of Shareholders held March
15, 1996, increasing the number of shares of Class A Common Stock reserved
for issuance thereunder from 1,100,000 to 1,350,000; and (b) 650,000 shares
of Class A Common Stock pursuant to an amendment approved by the
shareholders at the Registrant's Annual Meeting of Shareholders held on
March 15, 1997, increasing the number of shares of Class A Common Stock
reserved for issuance thereunder from 1,350,000 to 2,000,000.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and (c) of the Securities Act of 1933. Pursuant
to Rule 457(c), the maximum offering price per share is $0.7656, the average
of the high and low prices of a share of the Registrant's Class A Common
Stock as reported on the Nasdaq National Market System on July 26, 1999, and
the maximum aggregate offering price of $689,063 is the product of $0.7656
and the number of shares of the Registrant's Class A Common Stock being
registered hereby.
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EXPLANATORY NOTE
We previously filed a registration statement on Form S-8 with the SEC on
June 30, 1995 (Registration No. 33-94370) in connection with our 1994 Stock
Option Plan. This registration statement registers 900,000 additional shares of
our Class A Common Stock to be issued pursuant to our 1994 Stock Option Plan.
Our board of directors approved and our shareholders ratified the issuance of
the additional shares under two amendments to the 1994 Stock Option Plan. These
amendments increased the maximum number of shares authorized under the 1994
Stock Option Plan from 1,100,000 to 2,000,000 shares of Class A Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We incorporate by reference in this prospectus and encourage you to read
the following documents that we have filed with the SEC pursuant to the
requirements of the Securities Exchange Act of 1934:
1. Our Amended Annual Report on Form 10-K/A for the fiscal year
ended September 30, 1998 filed with the SEC on February 2, 1999;
2. Our Definitive Proxy Statement filed with the SEC on January 4,
1999;
3. Our Quarterly Report on Form 10-Q for the quarter ended December
31, 1998 filed with the SEC on February 16, 1999;
4. Our Current Reports on Form 8-K filed with the SEC on January 25,
1999, March 11, 1999, April 1, 1999 and April 20, 1999;
5. Our Definitive Special Proxy Statement filed with the SEC on
April 13, 1999;
6. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 filed with the SEC on May 17, 1999; and
7. The description of our Class A Common Stock contained in our
Registration Statement on Form 8-A filed with the SEC on July 31,
1990, including any amendments or reports filed for the purpose
of updating the description.
We also incorporate by reference as part of this prospectus and
encourage you to read all reports and other documents that we have filed (or
will file) with the SEC under the Securities Exchange Act of 1934, that are
after the date of this prospectus and before the termination of the offering of
the shares registered under this prospectus. You should understand that, if any
statement contained in a report or document that is incorporated by reference in
this prospectus is modified or superseded, then the later filed report or
document will modify or supersede the statements contained in this prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon the written or oral
request of that person, a copy of any and all documents incorporated by
reference in this prospectus (not including, however, the exhibits to those
documents unless those exhibits are specifically incorporated by reference in
such documents). Requests should be sent to the attention of the Secretary of
our company, at 9393 Towne Centre Drive, Suite 200, San Diego, California 92121
or you may call and ask for the Secretary of our company at (619) 558-0364.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
We hereby incorporate by reference Sections 204(a)(10) and (11), 204.5
and 317 of the California General Corporation Law which covers the
indemnification of directors, officers, employees and agents of a corporation.
We refer you to Article 6 of our Restated Articles of Incorporation, and Section
3.15 of our Amended and Restated By-Laws, which provide for indemnification by
our company in the manner and to the full extent permitted by California law.
Beginning August 10, 1992, we have maintained directors' and officers'
liability insurance with policy limits of $7,500,000. The policy covers 100
percent of losses arising from, among other things, claims of breach of duty,
neglect, error, alleged misstatement, misleading statement or omission by the
directors and officers in their capacity as such. Payment for loss would be made
to or on our behalf where we are required or permitted to indemnify directors or
officers for covered losses pursuant to statutory or common law, our Restated
Articles of Incorporation or Amended and Restated By-Laws or by agreement. The
policy provides for retention of $5,000 per director or officer, subject to a
maximum of $10,000 for each loss, except in the case of payment for loss to or
on our behalf, in which case the retention is $100,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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(a) Exhibits
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4.1 -- Forms of Class A and Class B Common Stock Certificates (1)
4.2 -- Class D Warrant Agreement (including form of Class D Warrant Certificate) (2)
4.3 -- Convertible Note, dated February 26, 1997, issued to RGC International Investors, LDC (3)
4.4 -- Form of Class G Stock Purchase Warrant (3)
4.5 -- Rights Agreement, dated as of March 5, 1999, between AVANIR Pharmaceuticals and American
Stock Transfer & Trust Company (4)
4.6 -- Form of Rights Certificate with respect to the Rights Agreement dated as of March 5, 1999 (4)
4.7 -- Form of Series D Convertible Preferred Stock Certificate (5)
4.8 -- Amended and Restated Class I Stock Purchase Warrant dated March 4, 1999 (6)
4.9 -- Form of Class J Stock Purchase Warrant (5)
4.10 -- Class K Stock Purchase Warrant dated April 1, 1999 (6)
4.11 -- Class L Stock Purchase Warrant dated June 8, 1999(9)
5.1 -- Opinion of Baker & McKenzie
23.1 -- Independent Auditors' Consent
23.2 -- Consent of Baker & McKenzie (included in Exhibit 5.1)
24 -- Power of Attorney (reference is made to page II-4 of this registration statement.)
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99.1 -- 1994 Stock Option Plan (7)
99.2 -- 1998 Stock Option Plan (8)
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1. Incorporated by reference to the similarly described exhibit filed in
connection with the registrant's Registration Statement on Form S-1,
File No. 33-32742, declared effective by the SEC on May 8, 1990.
2. Incorporated by reference to the similarly described exhibit filed in
connection with the registrant's Registration Statement on Form S-1,
File No. 33-49082, declared effective by the SEC on October 26, 1992.
3. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed March 10, 1997.
4. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on March 11,
1999.
5. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on April 1, 1999.
6. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on April 20,
1999.
7. Incorporated by reference to the similarly described exhibit included
with the registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994, filed December 29, 1994.
8. Incorporated by reference to the similarly described exhibit included
with the registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed May 17, 1999.
9. Incorporated by reference to the similarly described exhibit included
with the registrant's Amendment No. 1 to the Registration Statement on
Form S-3, filed July 15, 1999.
(b) All other schedules are omitted for the reason that the
information is included in the financial statements or the related notes or that
they are not required or are not applicable.
ITEM 9. UNDERTAKINGS.
We hereby undertake:
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 this 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 this registration
statement; and
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iii. To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs 1(i) and 1(ii) will not apply if we file with
or furnish to the SEC the information that is required to be included in a
post-effective amendment by those paragraphs in periodic reports pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be deemed to be
a new registration statement relating to the securities registered therein, and
the offering of such securities at that time will 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 that remain unsold upon the
termination of our 1994 Stock Option Plan.
We also undertake that, for purposes of determining any liability under
the Securities Act of 1933, each filing of our annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
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 provisions of its Restated Articles of
Incorporation and Amended and Restated By-Laws of the registrant, the California
General Corporation Law or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act of 1933, and is therefore unenforceable. If a
claim for indemnification against such liabilities (other than the payment by
the issuer 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, then 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 of 1933, and will be governed by the final adjudication of such
issue.
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
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 San Diego, State of California, on this 30th day of
July, 1999.
AVANIR PHARMACEUTICALS
By: /s/Gerald J. Yakatan, Ph.D.
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Gerald J. Yakatan, Ph.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gerald J. Yakatan, Ph.D. and Gregory P.
Hanson, and each of them acting individually, as his attorney-in-fact, each with
full power of substitution and resubstitution, for him in any and all
capacities, to sign any and all amendments to this registration statement on
Form S-8, and to file the same, with all exhibits thereto, and other documents
in
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connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, 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 for all intents and purposes as he
might or could do in person, hereby ratifying and confirming our signatures as
they may be signed by our said attorneys-in-fact to any and all amendments to
this registration statement.
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.
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Signature Title Date
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/s/Gerald J.Yakatan, Ph.D. President, Chief Executive Officer and a Director July 30, 1999
- ------------------------------------- (Principal Executive Officer)
Gerald J. Yakatan, Ph.D.
/s/Gregory P. Hanson Vice President, Finance and Chief Financial July 30, 1999
- ------------------------------------- Officer (Principal Financial and Accounting
Gregory P. Hanson Officer)
/s/George P. Rutland Chairman of the Board of Directors July 30, 1999
- -------------------------------------
George P. Rutland
/s/Dennis J. Carlo, Ph.D. Director July 30, 1999
- -------------------------------------
Dennis J. Carlo, Ph.D.
/s/Michael W. George Director July 30, 1999
- -------------------------------------
Michael W. George
Director July 30, 1999
- -------------------------------------
Edward L. Hennessy, Jr.
/s/James B. Glavin Director July 30, 1999
- -------------------------------------
James B. Glavin
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Signature Title Date
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Director July 30, 1999
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Kenneth E. Olson
/s/Stuart A. Samuels Director July 30, 1999
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Stuart A. Samuels
/s/Joseph E. Smith Director July 30, 1999
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Joseph E. Smith
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Forms of Class A and Class B Common Stock Certificates (1)
4.2 Class D Warrant Agreement (including form of Class D Warrant
Certificate) (2)
4.3 Convertible Note, dated February 26, 1997, issued to RGC
International Investors, LDC (3)
4.4 Form of Class G Stock Purchase Warrant (3)
4.5 Rights Agreement, dated as of March 5, 1999, between AVANIR
Pharmaceuticals and American Stock Transfer & Trust Company (4)
4.6 Form of Rights Certificate with respect to the Rights Agreement
dated as of March 5, 1999 (4)
4.7 Form of Series D Convertible Preferred Stock Certificate (5)
4.8 Amended and Restated Class I Stock Purchase Warrant dated March 4,
1999 (6)
4.9 Form of Class J Stock Purchase Warrant (5)
4.10 Class K Stock Purchase Warrant dated April 1, 1999 (6)
4.11 Class L Stock Purchase Warrant, dated June 8, 1999 (9)
5.1 Opinion of Baker & McKenzie
23.1 Independent Auditors' Consent
23.2 Consent of Baker & McKenzie (included in Exhibit 5.1)
24 Power of Attorney (reference is made to page II-4 of this
registration statement.)
99.1 1994 Stock Option Plan (7)
99.2 1998 Stock Option Plan (8)
</TABLE>
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1. Incorporated by reference to the similarly described exhibit filed in
connection with the registrant's Registration Statement on Form S-1,
File No. 33-32742, declared effective by the SEC on May 8, 1990.
2. Incorporated by reference to the similarly described exhibit filed in
connection with the registrant's Registration Statement on Form S-1,
File No. 33-49082, declared effective by the SEC on October 26, 1992.
3. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed March 10, 1997.
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4. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on March 11,
1999.
5. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on April 1, 1999.
6. Incorporated by reference to the similarly described exhibit included
with the registrant's Current Report on Form 8-K filed on April 20,
1999.
7. Incorporated by reference to the similarly described exhibit included
with the registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994, filed December 29, 1994.
8. Incorporated by reference to the similarly described exhibit included
with the registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed May 17, 1999.
9. Incorporated by reference to the similarly described exhibit included
with the registrant's Amendment No. 1 to the Registration Statement on
Form S-3, filed July 15, 1999.
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EXHIBIT 5.1
[LETTERHEAD OF BAKER & MCKENZIE]
July 30, 1999
AVANIR Pharmaceuticals
9393 Towne Centre Drive, Suite 200
San Diego, California 92121-3016
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with
the Securities and Exchange Commission on or about July 30, 1999 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 900,000 shares of
the Company's Class A Common Stock, no par value per share ("Common Stock"),
reserved for issuance pursuant to the Company's 1994 Stock Option Plan (the
"Plan").
As your legal counsel, in connection with this transaction, we have examined the
Company's Restated Articles of Incorporation and Amended and Restated By-Laws,
the written Plan, records of corporate proceedings with respect to the Plan, the
Shares and related options and such documents as we have deemed necessary in
connection with the issuance of the Shares. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies.
Based upon our examination mentioned above, we are of the opinion that the
Shares have been validly authorized for issuance and, when issued and sold in
accordance with the terms set forth in the Registration Statement that the Plan,
and when (a) the Registration Statement becomes effective under the Securities
Act, (b) the pertinent provisions of any applicable state securities law have
been complied with, and (c) in the case of options issued under the Plan have
been paid for, the Shares so issued will be legally issued and fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and amendments thereto.
Very truly yours,
BAKER & MCKENZIE
Baker & McKenzie
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
AVANIR Pharmaceuticals:
We consent to the incorporation by reference in this Registration Statement of
AVANIR Pharmaceuticals, formerly LIDAK Pharmaceuticals, (a development stage
enterprise) (the "Company") on Form S-8 of our report dated December 24, 1998
(which report expresses an unqualified opinion and includes explanatory
paragraphs relating to the status of the Company as a development stage
enterprise, the Company's ability to continue as a going concern, and the
Company as a defendant in certain lawsuits), appearing in the Annual Report on
Form 10-K/A of AVANIR Pharmaceuticals for the year ended September 30, 1998.
DELOITTE & TOUCHE LLP
San Diego, California
July 30, 1999
