II-1
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. Non-Employee Director 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) 250,000 $ 25.00 $ 6,250,000 $ 1,844.00
(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
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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 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.
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 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
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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
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Exhibit 5
[Letterhead of Dorsey & Whitney LLP]
October 15, 1998
Curative Health Services, Inc.
150 Motor Parkway
Hauppauge, NY 11788-5145
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 250,000 shares of Common Stock, $.01 par value per
share, of the Company (the "Shares"), issuable pursuant to the Company's
Non-Employee Director 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
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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. Non-Employee Director 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
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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 pursuant to
the Curative Technologies, Inc. Non-Employee Director 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.
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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 250,000 shares of the Company's common
stock issuable pursuant to the Company's Non-Employee Director 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
