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As filed with the Securities and Exchange Commission on November 12, 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
THERATECH, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 87-0420511
(State or Other Jurisdiction (I.R.S. Employer Identification Number)
of Incorporation or Organization)
417 Wakara Way, Suite 100
Salt Lake City, UT 84108
(Address of Principal Executive Offices) (Zip Code)
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THERATECH, INC.
AMENDED AND RESTATED 1992 EMPLOYEES' STOCK OPTION PLAN
AMENDED AND RESTATED 1992 DIRECTORS' STOCK OPTION PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
-------------------------------
DINESH C. PATEL, PH.D.
Chairman, President and Chief Executive Officer
TheraTech, Inc.
417 Wakara Way, Suite 100
Salt Lake City, UT 84108
(Name and Address of Agent for Service)
(801) 588-6200
(Telephone Number, Including Area Code, of Agent for Service)
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With Copy to:
Holland & Hart LLP
215 South State Street, Suite 500
Salt Lake City, UT 84111-2346
(801) 595-7800
ATTENTION: DAVID G. ANGERBAUER, ESQ.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount to Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
be Registered(1) Registered Share Price Fee
--------- --------- ----------- ----------
<S> <C> <C> <C> <C>
Amended and Restated 1992
Employees' Stock Option Plan,
Common Stock, $0.01 par value
Shares for outstanding options 1,496,589 $ 8.63 (2) $12,915,563 $ 3,913.81
Shares for future options 1,728,411 $10.00 (3) $17,284,110 $ 5,237.61
Amended and Restated 1992
Directors' Stock Option Plan,
Common Stock, $0.01 par value
Shares for outstanding options 47,750 $ 9.43(2) $ 450,282 $ 136.45
Shares for future options 289,750 $10.00(3) $ 2,897,500 $ 878.03
1993 Employee Stock Purchase Plan,
Common Stock, $0.01 par value
400,000 $ 8.50(4) $ 3,400,000 $ 1,030.30
--------- ----------- ----------
TOTAL 3,962,500 $36,947,455 $11,196.20
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any additional
shares of the Registrant's Common Stock, $0.01 par value, which are issued or
become issuable under the Amended and Restated 1992 Directors' Stock Option
Plan, the Amended and Restated 1992 Employees' Stock Option Plan and the 1993
Employee Stock Purchase Plan to prevent dilution resulting from any stock
dividend, stock split, recapitalization or other similar transaction.
(2) Estimated in accordance with Rule 457(h) under the Securities Act based on
the weighted average exercise price per share for outstanding options.
(3) Estimated in accordance with Rule 457(h) under the Securities Act based on
the average of the high and low prices of the Common Stock reported on November
6, 1997, on the Nasdaq National Market.
(4) Estimated in accordance with Rule 457(h) under the Securities Act based on
85% of the average of the high and low prices of the Common Stock reported on
November 6, 1997, on the Nasdaq National Market.
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PART II
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by TheraTech, Inc. (the "Registrant") with
the Commission are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's latest annual report, filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on Form 10-K, for the fiscal year ended December 31, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
(d) The description of the Registrant's Common Stock, par value $0.01,
contained in the Registrant's Registration Statement on Form 8-A filed with the
Commission on May 13, 1992 under the Exchange Act.
(e) All documents filed subsequent hereto 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 securities offered have been sold or which
deregisters all securities then remaining unsold.
The consolidated financial statements of the Registrant appearing in the
Registrant's Annual Report (Form 10-K) for the year ended December 31, 1996,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon, and is incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of
Ernst & Young LLP pertaining to such financial statements (to the extent covered
by consents filed with the Securities and Exchange Commission), given upon the
authority of such firm as experts in accounting and auditing.
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(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power 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, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and
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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." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power 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 or suit by or in the right of the corporation to procure a judgment in
its favor. . .{by reason of his service in one of the capacities specified in
the preceding sentence} against expenses, (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit 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
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper."
The Registrant's Bylaws provide for indemnification of any director or
officer of the Registrant who is or was involved in any manner (including,
without limitation, as a party or a witness) in any threatened, pending, or
completed investigation, claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, any
action, suit or proceeding brought by or in the right of the Registrant to
procure a judgment in its favor) by reason of the fact that such director or
officer is or was serving as a director or officer of the Registrant or is or
was serving another entity as a director, officer, employee, fiduciary or agent
at the request of the Registrant, against all expenses and liabilities actually
and reasonably incurred by such director or officer in connection with such
proceeding.
In addition, the Registrant's Restated Certificate of Incorporation
provides that to the fullest extent permitted by Delaware Law, the Registrant's
directors will not be liable for breach of the directors' fiduciary duty of care
to the Registrant and its stockholders. This provision in the Restated
Certificate of Incorporation does not eliminate the duty of care, and in
appropriate circumstances, equitable remedies such as an injunction or other
forms of non-monetary relief would remain available under Delaware law. Each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, for acts or
omissions the director believes to be contrary to the best interests of the
Registrant or its stockholders, for any transaction from which the director
derived improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Registrant or its stockholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper distributions to stockholders
and loans to directors and officers. This provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
The Registrant's Restated Certificate of Incorporation and Bylaws also
provide that the Registrant will indemnify its directors, officers, employees
and other agents to the fullest extent permitted by Delaware law. The Registrant
is also empowered under its
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Bylaws to purchase insurance on behalf of any person it is required or permitted
to indemnify.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Regulation S-K
Exhibit Document
------- --------
*4.1 Restated Certificate of Incorporation of the Registrant, incorporated by
reference to the Registrant's Registration Statement on Form S-1
(Commission File No. 33-55122), which became effective on December 17,
1992.
*4.2 Amended Bylaws of the Registrant, incorporated by reference to the
Registrant's Registration Statement on Form S-1 (Commission File No.
33-55122), which became effective on December 17, 1992.
*4.3 Form of Stock Certificate, incorporated by reference to the Registrant's
Registration Statement on Form S-1 (Commission File No. 33-46155), which
became effective on March 13, 1992.
*4.4 TheraTech, Inc. Amended and Restated 1992 Employees' Stock Option Plan,
incorporated by reference to the Registrant's Proxy Statement filed in
connection with its 1996 Annual Meeting of Stockholders.
*4.5 TheraTech, Inc. Amended and Restated 1992 Directors' Stock Option Plan,
incorporated by reference to the Registrant's Proxy Statement filed in
connection with its 1994 Annual Meeting of Stockholders.
*4.6 TheraTech, Inc. 1993 Employee Stock Purchase Plan, incorporated by
reference to the Registrant's Proxy Statement filed in connection with
its 1993 Annual Meeting of Stockholders.
5 Opinion of Holland & Hart LLP, as to the legality of securities being
registered.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5).
24 Power of Attorney (included on page 8 of this Registration Statement).
- -------------------------------
*Exhibits incorporated herein by reference.
6
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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 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.
(2) 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
(c) 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 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.
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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 Salt Lake City, State of Utah, on November 12, 1997.
TheraTech, Inc.
/s/ Dinesh C. Patel, Ph.D.
-------------------------------
Dinesh C. Patel, Ph.D.
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS by these presents that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints Dinesh
C. Patel and Alexander L. Searl, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below, and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that such attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in the
capacities indicated on November 12, 1997:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Dinesh C. Patel, Ph.D. Chairman, President, and Chief Executive Officer
- ------------------------------------
Dinesh C. Patel, Ph.D. (Principal Executive Officer)
/s/ Alexander L. Searl Senior Vice President and Chief Financial Officer
- ------------------------------------
Alexander L. Searl (Principal Financial and Accounting Officer)
/s/ William I. Higuchi, Ph.D. Director
- ------------------------------------
William I. Higuchi, Ph.D.
/s/ Gary L. Crocker Director
- ------------------------------------
Gary L. Crocker
/s/ Jay J. Pisik Director
- ------------------------------------
Jay J. Pisik
/s/ James T. O'Brien Director
- ------------------------------------
James T. O'Brien
/s/ Boyd J. Poulsen, Ph.D. Director
- ------------------------------------
Boyd J. Poulsen, Ph.D.
</TABLE>
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THERATECH, INC.
EXHIBIT INDEX
Regulation S-K
Exhibit Document
- ------- --------
*4.1 Restated Certificate of Incorporation of the Registrant, incorporated by
reference to the Registrant's Registration Statement on Form S-1
(Commission File No. 33-55122), which became effective on December 17,
1992.
*4.2 Amended Bylaws of the Registrant, incorporated by reference to the
Registrant's Registration Statement on Form S-1 (Commission File No.
33-55122), which became effective on December 17, 1992.
*4.3 Form of Stock Certificate, incorporated by reference to the Registrant's
Registration Statement on Form S-1 (Commission File No. 33-46155) which
became effective on March 13, 1992.
*4.4 TheraTech, Inc. Amended and Restated 1992 Employees' Stock Option Plan,
incorporated by reference to the Registrant's Proxy Statement filed in
connection with its 1996 Annual Meeting of Stockholders.
*4.5 TheraTech, Inc. Amended and Restated 1992 Directors' Stock Option Plan,
incorporated by reference to the Registrant's Proxy Statement filed in
connection with its 1994 Annual Meeting of Stockholders.
*4.6 TheraTech, Inc. 1993 Employee Stock Purchase Plan, incorporated by
reference to the Registrant's Proxy Statement filed in connection with
its 1993 Annual Meeting of Stockholders.
5 Opinion of Holland & Hart LLP, as to the legality of securities being
registered
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Holland & Hart LLP (contained in Exhibit 5)
24 Power of Attorney (included on page 8 of this Registration Statement)
- -------------------------------
* Exhibits incorporated herein by reference.
9
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Exhibit 5
[HOLLAND & HART LLP LETTERHEAD]
November 11, 1997
TheraTech, Inc.
417 Wakara Way, Suite 100
Salt Lake City, Utah 84108
Ladies and Gentlemen:
We have acted as counsel to TheraTech, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of 1933
(the "Act") of 3,962,500 shares of the Company's common stock, $0.01 par value
(the "Shares"), to be offered upon the terms and subject to the conditions set
forth in the TheraTech, Inc. Amended and Restated 1992 Employees' Stock Option
Plan, Amended and Restated 1992 Directors' Stock Option Plan and 1993 Employee
Stock Purchase Plan (collectively, the "Stock Plans").
In connection therewith, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Certificate of Incorporation
of the Company, the Bylaws of the Company, the Stock Plans, records of relevant
corporate proceedings with respect to the offering of the Shares and such other
documents, instruments and corporate proceedings with respect to the offering of
the Shares and such other documents, instruments and corporate records as we
have deemed necessary or appropriate for the expression of the opinion contained
herein. We have also reviewed the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission on November 12, 1997 with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued in accordance with the terms of the Stock
Plans, will be validly issued, fully paid and non-assessable.
<PAGE> 2
The opinion expressed herein is based solely upon and is limited to the
General Corporation Laws of the State of Delaware and the federal laws of the
United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Holland & Hart LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm as experts in Part II, Item 3 of the
Registration Statement (Form S-8) pertaining to the TheraTech, Inc. Amended and
Restated 1992 Employees' Stock Option Plan, the TheraTech, Inc. Amended and
Restated 1992 Directors' Stock Option Plan, and the TheraTech, Inc. 1993
Employee Stock Purchase Plan and to the incorporation by reference therein of
our report dated February 7, 1997, with respect to the consolidated financial
statements of TheraTech, Inc. incorporated by reference in its Annual Report
(Form 10-K), filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Salt Lake City, Utah
November 12, 1997
