AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUNPHARM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE F593097048
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
4651 SALISBURY ROAD, SUITE 205
JACKSONVILLE, FLORIDA 32256 32256
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
AMENDED AND RESTATED 1995 NON-EMPLOYEE
DIRECTORS' STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
STEFAN BORG
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SUNPHARM CORPORATION
4651 SALISBURY ROAD, SUITE 205
JACKSONVILLE, FLORIDA 32256
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(904) 296-3320
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
JEFFREY L. WADE
ANDREWS & KURTH L.L.P.
2170 BUCKTHORNE PLACE, SUITE 150
THE WOODLANDS, TEXAS 77380
(713) 220-4801
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C> <C>
Common Stock, par value $.0001 per share 1,050,000 Shares $5.53(1) $5,806,500(1) $1,760
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h), based upon the average of the high and
low sales prices of a share of the Company's Common Stock on The Nasdaq
Small Cap Market on December 8, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
SunPharm Corporation (the "Company") incorporates herein by
reference the following documents as of their respective dates as filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-KSB for the
year ended December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-QSB for
the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997;
(c) The Company's Current Report on Form 8-K filed with
the Commission on April 14, 1997;
(d) The description of the Company's common stock, par
value $.0001 per share (the "Common Stock"),
contained in the Company's Registration Statement on
Form 8-A filed with the Commission on January 18,
1996 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act").
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, INTER
ALIA, empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, 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. Similar
indemnity is authorized for such persons against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed action or suit if such
person 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 provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall
not have been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination by the
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stockholders or disinterested directors or by independent legal counsel in a
written opinion that indemnification is proper because the indemnitee has met
the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
The Company maintains policies insuring its officers and directors against
certain liabilities for actions taken in such capacities, including liabilities
under the Securities Act of 1933.
Article VII of the Company's Bylaws provides for
indemnification of the directors and officers of the Company to the full extent
permitted by law, as now in effect or later amended.
Article VIII of the Company's Certificate of Incorporation
limits under certain circumstances the liability of the Company's directors for
a breach of their fiduciary duty as directors. These provisions do not eliminate
the liability of a director (i) for a breach of the director's duty of loyalty
to the Company 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 (relating to the
declaration of dividends and purchase or redemption of shares in violation of
the Delaware General Corporation Law) or (iv) for any transaction from which the
director derived an improper personal benefit.
Article IX of the Company's Certificate of Incorporation
provides that the Company shall, to the maximum extent permitted under Delaware
law, indemnify and upon request shall advance expenses to any person who is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has agreed to be a
director or officer of the Company or while a director or officer is or was
serving at the request of the Company as a director, officer, partner, trustee,
employee or agent of any corporation, partnership, joint venture, trust or other
enterprise, against expenses, judgments, fines, penalties and amounts paid in
settlement or incurred in connection with the investigation, preparation to
defend or defense of such action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 -- Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement
on Form SB-2 (Registration No. 33-85416-A)).
4.2 -- Bylaws (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form SB-2
(Registration No. 33-85416-A)).
4.3 -- Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Amendment No. 2 to the
Company's Registration Statement on Form SB-2
(Registration No. 33-85416-A)).
5.1* -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the securities being registered.
23.1* -- Consent of Deloitte & Touche LLP.
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EXHIBIT NO. DESCRIPTION
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23.2* -- Consent of Andrews & Kurth L.L.P. (included in the
opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1* -- Power of Attorney (set forth on the signature page
contained in Part II of this Registration Statement).
99.1 -- SunPharm Corporation Amended and Restated 1994 Stock
Option Plan (incorporated by reference to Exhibit 10. 1
to the Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1997 (File No. 0-27578)).
99.2 -- SunPharm Corporation Amended and Restated 1995
Non-Employee Directors' Stock Option Plan (incorporated
by reference to Exhibit 10.2 to the Company's Quarterly
Report on Form 10-QSB for the quarter ended June 30,
1997 (File No. 0-27578)).
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* filed herewith
ITEM 9. UNDERTAKINGS.
(a) 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 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;
(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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
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.
(b) 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 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
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.
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(c) 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 Securities Act of 1933 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 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.
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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 Jacksonville, Florida, on the 9th day of
December, 1997.
SUNPHARM CORPORATION
By: /s/ STEFAN BORG
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Stefan Borg
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
officers and directors of SunPharm Corporation (the "Company") hereby
constitutes and appoints Stefan Borg as his true and lawful attorney-in-fact and
agent, with full power of substitution, for him and on his behalf and in his
name, place and stead, in any and all capacities, to sign, execute and file this
Registration Statement under the Securities Act of 1933, as amended, and any or
all amendments (including, without limitation, post-effective amendments), with
all exhibits and any and all documents required to be filed with respect
thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such 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 order to effectuate the same, as fully to all intents and purposes
as he, or his substitute, himself might or could do if personally present,
hereby ratifying and confirming all that such attorney-in-fact and agent may
lawfully do or cause to be done.
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
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<S> <C> <C> <C>
/S/ STEFAN BORG President, Director and Chief Executive Officer December 9, 1997
Stefan Borg (PRINCIPAL EXECUTIVE AND ACCOUNTING OFFICER)
/S/ PHILIP R. TRACY Chairman of the Board December 9, 1997
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Philip R. Tracy
/S/ CHARLES DIMMLER, III Director December 9, 1997
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Charles Dimmler, III
/S/ JERRY T. JACKSON Director December 9, 1997
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Jerry T. Jackson
/S/ ROBERT S. JANICKI Director December 9, 1997
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Robert S. Janicki
/S/ JACQUES F. REJEANGE Director December 9, 1997
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Jacques F. Rejeange
/S/ NORMAN H. LIPOFF Director December 9, 1997
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Norman H. Lipoff
/S/ ROBERT A. SCHOELLHORN Director December 9, 1997
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Robert A. Schoellhorn
/S/ GEORGE B. SCHWARTZ Director December 9, 1997
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George B. Schwartz
/S/ JAY MOORIN Director December 9, 1997
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Jay Moorin
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Exhibit 5.1
December 9, 1997
Board of Directors
SunPharm Corporation
4651 Salisbury Road, Suite 205
Jacksonville, Florida 32256
Ladies and Gentlemen:
We have acted as counsel to SunPharm Corporation (the "Company") in
connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") relating to the registration under the Securities Act
of 1933, as amended, of the issuance of up to (i) 750,000 shares (the "Employee
Plan Shares") of the Company's common stock, $.0001 par value (the "Common
Stock"), pursuant to the Company's Amended and Restated 1994 Stock Option Plan
(the "Employee Plan") and (ii) 300,000 shares (the "Director Plan Shares" and,
together with the Employee Plan Shares, the "Shares") of Common Stock pursuant
to the Company's Amended and Restated 1995 Non-Employee Directors' Stock Option
Plan (the "Director Plan").
In connection herewith, we have examined copies of such statutes,
regulations, corporate records and documents, certificates of public and
corporate officials and other agreements, contracts, documents and instruments
as we have deemed necessary as a basis for the opinion hereafter expressed. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies. We have
also relied, to the extent we deem such reliance proper, upon information
supplied by officers and employees of the Company with respect to various
factual matters material to our opinion.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized, and that such Shares will, when issued in accordance with
the terms of the Employee Plan or the Director Plan, as applicable, be legally
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ANDREWS & KURTH L.L.P.
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of SunPharm Corporation (the "Company") on Form S-8 of our report
dated March 14, 1997 (which report expresses an unqualified opinion and includes
an explanatory paragraph referring to recurring losses incurred by the Company
from inception and to an uncertainty surrounding the Company's ability to obtain
sufficient financing in 1997 which raises substantial doubt about the Company's
ability to continue as a going concern), appearing in the Annual Report on Form
10-KSB of SunPharm Corporation for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
Jacksonville, Florida
December 9, 1997
