II-3
As filed with the Securities and Exchange Commission on October 15, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
Curative Health Services, Inc.
(Exact name of registrant as specified in its charter)
Minnesota 41-1503914
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
150 Motor Parkway
Hauppauge, New York 11788-5145
(Address of Principal Executive Offices) (Zip Code)
Curative Technologies, Inc. 1991 Stock Option Plan, as amended
(full title of the plan)
John Vakoutis Copy to:
President and Chief Executive Officer Timothy S. Hearn, Esq.
Curative Health Services, Inc. Dorsey & Whitney LLP
150 Motor Parkway 220 South Sixth Street
Hauppauge, New York 11788-5145 Minneapolis, Minnesota 55402-1498
(Name and address of agent for service)
(516) 232-7000 (612) 340-7802
(Telephone number, including area code, of agent for service)
--------------------
Approximate date of commencement of proposed sale to the public: from time
to time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of each class Maximum Offering Maximum
of Securities to be Amount to be Price Aggregate Offering Amount of
registered registered per Share (1) Price (1) Registration Fee (1)
Common Stock
($.01 par value) 1,400,000 $ 25.00 $ 35,000,000 $ 10,325.00
(1) Determined pursuant to Rule 457(c), based on the average of the high and
low sale prices of the Common Stock as reported on the Nasdaq National
Market System on October 12, 1998.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and Exchange Commission
by Curative Health Services, Inc., or its predecessor, Curative Technologies,
Inc. (the "Company") are hereby incorporated by reference in this Registration
Statement:
(a) The Company's annual report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's quarterly reports on Form 10-Q for the quarters
ended March 31, 1998 and June 30, 1998; and
(c) The description of the common stock, $.01 par value, of the
Company (the "Common Stock") contained in the Company's Registration
Statements on Form 8-A filed on June 26, 1991, and October 26, 1995, and
any amendment or report updating such description filed subsequent to the
date of such Registration Statements and prior to the termination of the
offering described herein.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 302A.521, subd. 2, of the Minnesota Statutes requires the Company
to indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with respect to
the Company, against judgments, penalties, fines, including, without limitation,
excise taxes assessed against the person with respect to an employee benefit
plan, settlements, and reasonable expenses, including attorneys' fees and
disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions if, with respect to the acts or omissions
the subject of the proceeding, such person: (1) has not been indemnified by
another organization or employee benefit plan for the same judgments, penalties
or fines; (2) acted in good faith; (3) received no improper personal benefit,
and statutory procedure has been followed in the case of any conflict of
interest by a director; (4) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and (5) in the case of
acts or omissions occurring in the person's performance in the official capacity
of director or, for a person not a director, in the official capacity of
officer, board committee member or employee, reasonably believed that the
conduct was in the best interests of the Company, or, in the case of performance
by a director, officer or employee of the Company was serving at the request of
the Company or whose duties involved service as a director, officer, partner,
trustee, employee or agent of another organization or employee benefit plan,
reasonably believed that the conduct was not opposed to the best interests of
the Company. In addition, Section 302A.521, subd. 3, of the Minnesota statutes,
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition of the proceeding in certain instances upon, among
other things, receipt of a written undertaking by the person to repay all
amounts so advanced if it is ultimately determined that the person is not
entitled to indemnification, unless otherwise limited by the Articles of
Incorporation or Bylaws of the Company. The Company's Bylaws limit the Company's
indemnification obligations to directors and officers, except as may otherwise
be required by law.
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A decision as to required indemnification is made, depending on certain
circumstances, by a disinterested majority of the Board of Directors present at
a meeting at which a disinterested quorum is present, by a designated committee
of the Board, by special legal counsel, by the shareholders, or by a court. The
Company's Fourth Restated Articles of Incorporation provide that a director is
not liable to the Company or its shareholders for monetary damages resulting
from a breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its shareholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for transactions from which the
director derived an improper personal benefit; (iv) under the Minnesota
statutory provision making directors personally liable, under a negligence
standard, for unlawful payment of dividends or unlawful stock purchases or
redemptions; or (v) for any act or omission occurring prior to the date of
adoption of such indemnification provision.
The Company maintains a directors' and officers' insurance policy (the
"Policy") in the aggregate amount of $5,000,000 which insures the directors and
officers of the Company against losses arising from certain claims for any
Wrongful Act (as defined in the Policy) by the directors or officers in their
respective capacities as such, or to the extent that the Company has indemnified
such directors or officers, which insures the Company against such losses when
and to the extent that the Company has indemnified such directors or officers
for such losses under the Company's Articles of Incorporation or Bylaws, by
contract or otherwise pursuant to applicable law. The Policy expires on August
1, 1999 unless renewed or earlier terminated. The Policy does not cover losses
in connection with claims relating to the purchase, sale, offer or solicitation
of an offer to purchase or sell any security or any violation of the Securities
Act of 1933, as amended (the "Securities Act"), or the Exchange Act, and
excludes certain other losses.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
5 Opinion of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5 to this
Registration Statement)
24 Power of Attorney
3
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Item 9. Undertakings
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; 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 paragraphs (1)(i) and (1)(ii) above will 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
bonafide 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.
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 (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 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.
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 of 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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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 Hauppauge, State of New York, on October 15, 1998.
CURATIVE HEALTH SERVICES, INC.
By /s/ John C. Prior
----------------------------
John C. Prior
Chief Financial Officer
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 date indicated.
Name Title Date
/s/John Vakoutis President, Chief Executive Officer, October 15, 1998
------------ (principal executive officer)
John Vakoutis and Director
/s/John C. Prior Senior Vice President, Finance, October 15, 1998
------------- Chief Financial Officer (principal
John C. Prior financial and accounting officer)
* Director
Gerardo Canet
* Director
Daniel A. Gregorie, M.D.
* Director
Lawrence Hoff
* Director
Timothy I. Maudlin
* Director
Gerard Moufflet
* Chairman of the Board,
Lawrence J. Steusser, Jr. Director
*By:/s/ John Vakoutis October 15, 1998
-------------
John Vakoutis
5
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EXHIBIT INDEX
Exhibit Number Description
5 Opinion of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 to
this Registration Statement)
24 Power of Attorney
6
<PAGE>
Exhibit 5
[Letterhead of Dorsey & Whitney LLP]
October 15, 1998
Curative Health Services, Inc.
150 Motor Parkway
Hauppauge, NY 11788-5145
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Curative Health Services, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") relating to the sale by the Company from time
to time of up to 1,216,956 shares of Common Stock, $.01 par value per share, of
the Company (the "Shares"), issuable pursuant to the Company's 1991 Stock Option
Plan, as amended (the "Plan").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures and
the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
--------------------
TSH
7
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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 No. 333- ) pertaining to the Curative
Technologies, Inc. 1991 Stock Option Plan, as amended, of our report dated
February 9, 1998, with respect to the consolidated financial statements and
schedule of Curative Health Services, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Melville, New York
October 15, 1998
8
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Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John Vakoutis and John C. Prior,
jointly and severally, his attorneys-in-fact, with full power of substitution
and resubstitution, for him in any and all capacities, to sign a registration
statement, and any or all amendments thereto, on Form S-8 for the sale of shares
of Curative Health Services, Inc. common stock, $.01 par value, pursuant to the
Curative Technologies, Inc. 1991 Stock Option Plan, as amended, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Name Date
/s/ John Vakoutis October 15, 1998
-------------
John Vakoutis
/s/ John C. Prior October 15, 1998
-------------
John C. Prior
/s/ Gerardo Canet October 15, 1998
-------------
Gerardo Canet
/s/ Daniel A. Gregorie, M.D. October 15, 1998
------------------------
Daniel A. Gregorie, M.D.
/s/ Lawrence Hoff October 15, 1998
-------------
Lawrence Hoff
/s/ Timothy I. Maudlin October 15, 1998
------------------
Timothy I. Maudlin
/s/ Gerard Moufflet October 15, 1998
---------------
Gerard Moufflet
/s/ Lawrence J. Steusser, Jr. October 15, 1998
-------------------------
Lawrence J. Steusser, Jr.
9
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[LETTERHEAD OF DORSEY & WHITNEY LLP]
STEPHEN KOZACHOK
(612) 343-7913
October 15, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Curative Health Services, Inc. (the "Company")
Registration Statement on Form S-8
Ladies and Gentlemen:
On behalf of the Company, we transmit herewith for filing under the
Securities Act of 1933, as amended, a Registration Statement on Form S-8 (the
"Registration Statement") covering 1,216,956 shares of the Company's common
stock issuable pursuant to the Company's 1991 Stock Option Plan, as amended.
Pursuant to Item 302 of Regulation S-T, the names of the signatories to
the Registration Statement have been typed in the electronically-filed version
of the Registration Statement, and the corresponding manual signatures have been
retained in the Company's files. The registration filing fee in the amount set
forth on the cover page of the Registration Statement has been transmitted to
the Securities and Exchange Commission's bank account at The Mellon Bank in
Pittsburgh, Pennsylvania.
Please call me at (612) 343-7913 if any questions arise in connection with
this submission. Thank you.
Very truly yours,
/s/ Steve Kozachok
Enclosures
cc: John C. Prior
Timothy S. Hearn, Esq.
Nasdaq Stock Market
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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 Hauppauge, State of New York, on October ___, 1998.
CURATIVE HEALTH SERVICES, INC.
By -------------
John C. Prior
Chief Financial Officer
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 date indicated.
Name Title Date
President, Chief Executive Officer, October 15, 1998
John Vakoutis (principal executive officer) and
Director
Senior Vice President, Finance, October 15, 1998
John C. Prior Chief Financial Officer (principal
financial and accounting officer)
Director
Gerardo Canet
Director
Daniel A. Gregorie, M.D.
Director
Lawrence Hoff
Director
Timothy I. Maudlin
Director
Gerard Moufflet
Chairman of the Board,
Lawrence J. Steusser, Jr. Director
By: -------------
John Vakoutis October 15, 1998
11
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John Vakoutis and John C. Prior,
jointly and severally, his attorneys-in-fact, with full power of substitution
and resubstitution, for him in any and all capacities, to sign a registration
statement, and any or all amendments thereto, on Form S-8 for the sale of shares
of Curative Health Services, Inc. common stock, $.01 par value, pursuant to the
Curative Technologies, Inc. 1991 Stock Option Plan, as amended, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Name Date
October 15, 1998
John Vakoutis
October 15, 1998
John C. Prior
October 15, 1998
Gerardo Canet
October 15, 1998
Daniel A. Gregorie, M.D.
October 15, 1998
Lawrence Hoff
October 15, 1998
Timothy I. Maudlin
October 15, 1998
Gerard Moufflet
October 15, 1998
Lawrence J. Steusser, Jr.
