As filed with the Securities and Exchange Commission on July 6, 1998
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
SEPRACOR INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-2536587
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
111 Locke Drive, Marlborough, Massachusetts 01752
(Address of Principal Executive Offices) (Zip Code)
1991 RESTATED STOCK OPTION PLAN
(Full Title of the Plan)
Mark G. Borden, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(Name and Address of Agent For Service)
(617) 526-6000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
- -------------- ------------ ------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 2,500,000 shares $41.25 (1) $103,125,000(1) $30,422
- ----------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low prices of the Common
Stock on the Nasdaq National Market on June 30, 1998 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933.
================================================================================
<PAGE>
Statement of Incorporation by Reference
- ---------------------------------------
Except as otherwise set forth below, this Registration Statement on Form
S-8 incorporates by reference the contents of the Registration Statements on
Form S-8, File Nos. 33-43460 and 333-5219, relating to the Registrant's 1991
Restated Stock Option Plan, as amended.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1991 Restated Stock Option Plan of Sepracor Inc., a
Delaware corporation (the "Registrant"), pursuant to Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Prospectus by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act, that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the Common Stock, par value $.10 per share
("Common Stock"), contained in a registration statement filed under 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 which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from
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<PAGE>
the date of the 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 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article NINTH of the Registrant's Restated Certificate of Incorporation (as
amended, the "Certificate of Incorporation") provides that no director of the
Registrant shall be liable for any breach of a fiduciary duty, except to the
extent that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Article THIRTEENTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all costs, charges, expenses (including attorneys' fees), judgments,
fines and amounts
3
<PAGE>
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, has no reasonable cause to believe his conduct
was unlawful and (b) shall be indemnified by the Registrant against all costs,
charges and expenses (including attorneys' fees) incurred in connection with any
action by or in the right of the Registrant brought against him by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be made with
respect to any such matter as to which such person shall have been adjudged to
be liable to the Registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice or
the settlement of an action without admission of liability, he is required to be
indemnified by the Registrant against all costs, charges and expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a director or officer at his request, provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Board of Directors or
independent legal counsel determines that the applicable standard of conduct
required for indemnification has not been met. In the event of a determination
by the Board of Directors or independent legal counsel that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make the applicable standard of
conduct required for indemnification, or if the Registrant fails to make an
indemnification payment within 60 days after such payment is claimed by such
person, such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the defense
thereto.
Article THIRTEENTH of the Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive, and provides that in
the event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers the Registrant must indemnify
those persons to the fullest extent permitted by such law as so amended.
4
<PAGE>
Item 7. Exemption from Registration Claimed.
-------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
-------------
1. The Registrant hereby undertakes:
(a) 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 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 (i) and (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.
5
<PAGE>
(b) 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.
(c) 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.
2. The Registrant hereby undertakes that, for the 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 in the initial bona fide offering thereof.
3. 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 Securities and Exchange 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 of 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.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 town of Marlborough, Commonwealth of Massachusetts, on the
6th day of July, 1998.
SEPRACOR INC.
By: /s/ Timothy J. Barberich
------------------------
Timothy J. Barberich,
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Sepracor Inc. hereby
severally constitute Timothy J. Barberich, David P. Southwell and Mark G.
Borden, Esq., and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Sepracor Inc. to comply with all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
7
<PAGE>
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Timothy J. Barberich President; Chief Executive July 6, 1998
- ------------------------- Officer and Director
Timothy J. Barberich (Principal Executive
Officer)
/s/ David P. Southwell Executive Vice President; July 6, 1998
- ------------------------- Chief Financial Officer
David P. Southwell (Principal Financial Officer)
/s/ Robert F. Scumaci Senior Vice President, July 6, 1998
- ------------------------- Finance and Administration
Robert F. Scumaci (Principal Accounting
Officer)
/s/ James G. Andress Director July 6, 1998
- -------------------------
James G. Andress
/s/ Digby W. Barrios Director July 6, 1998
- -------------------------
Digby W. Barrios
/s/ Robert J. Cresci Director July 6, 1998
- -------------------------
Robert J. Cresci
/s/ Robert F. Johnston Director July 6, 1998
- -------------------------
Robert F. Johnston
8
<PAGE>
/s/ Keith Mansford, Ph.D. Director July 6, 1998
Keith Mansford, Ph.D.
/s/ James F. Mrazek Director July 6, 1998
- -------------------------
James F. Mrazek
/s/ Alan A. Steigrod Director July 6, 1998
- -------------------------
Alan A. Steigrod
</TABLE>
9
<PAGE>
Exhibit Index
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1(1) Certificate of Incorporation of the Registrant, as amended
4.2(2) By-Laws of the Registrant
4.3(2) Specimen Certificate of Common Stock of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (included in the signature pages of this
Registration Statement)
</TABLE>
- ------------------
(1) Incorporated by reference from the Registrant's Registration Statement
on Form S-8, filed on July 6, 1998, relating to the 1991 Director Stock
Option Plan.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-41653).
[LETTERHEAD]
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-6000 o FAX 617-526-5000
Exhibit 5
---------
July 6, 1998
Sepracor Inc.
111 Locke Drive
Marlborough, MA 01752
Re: 1991 Restated Stock Option Plan
-------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 2,500,000 shares of Common Stock, $.10 par value per
share (the "Shares"), of Sepracor Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1991 Restated Stock Option Plan (as amended, the
"Plan").
We have examined the Certificate of Incorporation, as amended, and the
By-Laws of the Company, and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company, the Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and 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 latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
<PAGE>
Sepracor Inc.
July 6, 1998
Page 2
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this Registration Statement
of Sepracor Inc. on Form S-8 relating to the 1991 Restated Stock Option Plan, of
our report dated February 19, 1998, except as to the information in Note W for
which the date is March 26, 1998, on our audits of the consolidated financial
statements and financial statement schedule of Sepracor Inc.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
July 6, 1998
Exhibit 23.3
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation
by reference in Sepracor Inc.'s registration statement on Form S-8 of our report
dated January 27, 1998 (except for the matter discussed in Note Q as to which
the date is March 26, 1998) included in BioSepra, Inc. and subsidiaries Form
10-K for the year ended December 31, 1997 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
July 6, 1998
