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As filed with the Securities and Exchange Commission on May 27, 1999.
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
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TEXAS BIOTECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 13-3532643
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
7000 FANNIN STREET, SUITE 1920
HOUSTON, TEXAS 77030
(Address of Principal Executive Offices)
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TEXAS BIOTECHNOLOGY CORPORATION
1999 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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Name, Address and Telephone Copy of Communications to:
Number of Agent for Service:
STEPHEN L. MUELLER ROBERT G. REEDY
TEXAS BIOTECHNOLOGY CORPORATION PORTER & HEDGES, L.L.P.
7000 FANNIN STREET, SUITE 1920 700 LOUISIANA STREET, SUITE 3500
HOUSTON, TEXAS 77030 HOUSTON, TEXAS 77002-2370
(713) 796-8822 (713) 226-0600
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.005 per share 1,000,000 $3.751 $3,751,000 $1,043
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(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the
anti-dilution provisions of the Plan and an automatic quarterly
adjustment mechanism provided thereunder.
(2) Pursuant to Rule 457(c), the registration fee is calculated on the
basis of the average of the high and low sale prices for the Common
Stock on the American Stock Exchange on May 25, 1999, $3.751. Pursuant
to Rule 457(h), the registration fee is calculated with respect to the
maximum number of the registrant's securities issuable under the Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The contents of the following documents filed by Texas Biotechnology
Corporation, a Delaware corporation (the "Company" or "Registrant"), with the
Securities and Exchange Commission ("Commission") are incorporated into this
registration statement ("Registration Statement") by reference:
(1) The Company's annual report on Form 10-K for the year ended
December 31, 1998, as filed on March 30, 1999, and as amended by
its report on Form 10-K/A-1 filed on April 1, 1999.
(2) The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1999, as filed on May 14, 1999.
(3) The description of the Company's common stock, par value $.005
per share ("Common Stock"), which is contained in the Company's
Registration Statement on Form 8-A effective December 15, 1993
(Commission File No. 1-12574), as amended by the Company's proxy
materials dated April 22, 1994 and April 4, 1996 relating to its
1994 and 1996 annual shareholders' meetings, respectively.
All documents filed by the Company with the Commission 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 filing date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered 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 date of filing such documents. The Company will provide without
charge to each participant in the Company's 1999 Stock Incentive Plan, upon
written or oral request of such person, a copy (without exhibits, unless such
exhibits are specifically incorporated by reference) of any or all of the
documents incorporated by reference pursuant to this Item 3.
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 DGCL permits a 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, 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
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust 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.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such persons shall have been adjudged liable to the corporation except as
otherwise provided by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses (including attorneys' fees).
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The statute does not permit indemnification unless the person seeking
indemnification has 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, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable to
criminal actions and to actions brought by or in the name of the corporation.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (i) by a majority vote of a quorum of
disinterested members of the board of directors, or (ii) by independent counsel
in a written opinion, if such a quorum does not exist or if the disinterested
directors so direct, or (iii) by the stockholders.
As permitted by the DGCL, the Company's Bylaws provide that it will
indemnify the directors, officers, employees and agents of the Company against
certain liabilities that they may incur in their capacities as directors,
officers, employees and agents. Furthermore, the Company's Certificate of
Incorporation, as amended, indemnifies the directors, officers, employees and
agents of the Company to the maximum extent permitted by the DGCL. The Company
has also entered into Indemnification Agreements with its officers and directors
providing for indemnification to the maximum extent permitted under the DGCL.
The Company has director and officer liability insurance policies that provide
coverage of up to $5.0 million except that no current coverage is provided for
any liabilities arising from the existing lawsuits. The existing lawsuits are
covered under prior policies.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1 1999 Stock Incentive Plan effective as of March 2, 1999
(Incorporated by reference to Exhibit 10.71 to the Company's
Form 10-Q (File No. 1-12574) filed with the Commission on May
14, 1999).
4.2 Article Fourth and Ninth of the Certificate of Incorporation,
as amended (Incorporated by reference to Exhibit 3.1 to the
Company's Form 10 (File No. 0-20117) effective June 26, 1992,
as amended).
4.3 Article Fourth of the Amendment to the Certificate of
Incorporation dated November 30, 1993 (Incorporated by
reference to Exhibit 3.4 to the Company's Form 10-Q (File No.
0-20117) filed with the Commission on November 14, 1994).
4.4 Article Fourth of the Amendment to the Certificate of
Incorporation dated May 20, 1994 (Incorporated by reference to
Exhibit 3.5 to the Company's Form 10-Q (File No. 0-20117)
filed with the Commission on November 14, 1994).
4.5 Article Fourth of the Certificate of Amendment of Certificate
of Incorporation (Incorporated by reference to Exhibit 3.6 to
the Company's Form 10-Q (File No. 1-12574) for the quarter
ended June 30, 1996).
4.6 Article II of the Amended and Restated By-laws (Incorporated
by reference to Exhibit 3.7 to the Company's Form 10-Q (File
No. 1-12574) for the quarter ended September 30, 1996).
5.1 Opinion of Porter & Hedges, L.L.P. with respect to legality of
securities (filed herewith).
23.1 Consent of KPMG LLP (filed herewith).
23.2 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS
(a) Undertaking to Update
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, as amended (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 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 (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
with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
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(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.
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(b) Undertaking With Respect to Documents Incorporated by Reference
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) Undertaking With Respect to Indemnification
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
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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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David B. McWilliams and Stephen L.
Mueller, and each of them, either of whom may act without joinder of the other,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- and post-effective amendments
and supplements to this Registration Statement, and to file the same, or cause
to be filed the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or the substitute or substitutes
of either of them, may lawfully do or cause to be done by virtue hereof.
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 Houston, State of Texas, on this 27th day of May,
1999.
TEXAS BIOTECHNOLOGY CORPORATION
By: /s/ STEPHEN L. MUELLER
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Stephen L. Mueller
Vice President, Finance and Administration,
Secretary and Treasurer
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on this 27th day of May, 1999.
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SIGNATURE TITLE
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/s/ JOHN M. PIETRUSKI Chairman of the Board of Directors
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John M. Pietruski
/s/ DAVID B. MCWILLIAMS
- ---------------------------------- Director, President and Chief Executive Officer
David B. McWilliams (Principal Executive Officer)
Director and Vice President, Research
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Richard A.F. Dixon, Ph.D.
/s/ STEPHEN L. MUELLER
- ---------------------------------- Vice President, Finance and Administration, Secretary
Stephen L. Mueller and Treasurer (Principal Financial and Accounting
Officer)
/s/ RON J. ANDERSON Director
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Ron J. Anderson, M.D.
/s/ FRANK C. CARLUCCI Director
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Frank C. Carlucci
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Signature Title
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/s/ ROBERT J. CRUIKSHANK Director
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Robert J. Cruikshank
/s/ JAMES A. THOMSON Director
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James A. Thomson, Ph.D.
/s/ JAMES T. WILLERSON Director
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James T. Willerson, M.D.
/s/ SUZANNE OPARIL Director
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Suzanne Oparil, M.D.
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1 1999 Stock Incentive Plan effective as of March 2, 1999
(Incorporated by reference to Exhibit 10.71 to the Company's
Form 10-Q (File No. 1-12574) filed with the Commission on May
14, 1999).
4.2 Article Fourth and Ninth of the Certificate of Incorporation,
as amended (Incorporated by reference to Exhibit 3.1 to the
Company's Form 10 (File No. 0-20117) effective June 26, 1992,
as amended).
4.3 Article Fourth of the Amendment to the Certificate of
Incorporation dated November 30, 1993 (Incorporated by
reference to Exhibit 3.4 to the Company's Form 10-Q (File No.
0-20117) filed with the Commission on November 14, 1994).
4.4 Article Fourth of the Amendment to the Certificate of
Incorporation dated May 20, 1994 (Incorporated by reference to
Exhibit 3.5 to the Company's Form 10-Q (File No. 0-20117)
filed with the Commission on November 14, 1994).
4.5 Article Fourth of the Certificate of Amendment of Certificate
of Incorporation (Incorporated by reference to Exhibit 3.6 to
the Company's Form 10-Q (File No. 1-12574) for the quarter
ended June 30, 1996).
4.6 Article II of the Amended and Restated By-laws (Incorporated
by reference to Exhibit 3.7 to the Company's Form 10-Q (File
No. 1-12574) for the quarter ended September 30, 1996).
5.1 Opinion of Porter & Hedges, L.L.P. with respect to legality of
securities (filed herewith).
23.1 Consent of KPMG LLP (filed herewith).
23.2 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
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EXHIBIT 5.1
May 26, 1999
Texas Biotechnology Corporation
7000 Fannin Street, Suite 1920
Houston, Texas 77030
Re: TEXAS BIOTECHNOLOGY CORPORATION REGISTRATION STATEMENT ON FORM
S-8; AND 1999 STOCK INCENTIVE PLAN EFFECTIVE AS OF MARCH 2,
1999
Gentlemen:
We have acted as counsel to Texas Biotechnology Corporation, a Delaware
corporation (the "Company"), in connection with the preparation for filing with
the Securities and Exchange Commission of a Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended. The
Registration Statement relates to an aggregate of 1,000,0000 shares (the
"Shares") of the Company's common stock, par value $.005 per share (the "Common
Stock"), issuable pursuant to the Company's 1999 Stock Incentive Plan effective
as of March 2, 1999 (the "Plan").
We have examined the Plan and such corporate records, documents,
instruments and certificates of the Company, and have reviewed such questions of
law as we have deemed necessary, relevant or appropriate to enable us to render
the opinion expressed herein. In such examination, we have assumed without
independent investigation the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of all natural
persons, and the conformity of any documents submitted to us as copies to their
respective originals. As to certain questions of fact material to this opinion,
we have relied without independent investigation upon statements or certificates
of public officials and officers of the Company.
Based upon such examination and review, we are of the opinion that the
Shares have been duly and validly authorized and will, upon issuance and
delivery as contemplated by the Plan, be validly issued, fully paid and
nonassessable outstanding shares of Common Stock.
This Firm consents to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Texas Biotechnology Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 to be filed on or about May 28, 1999 of Texas Biotechnology Corporation of
our report dated February 12, 1999, relating to the consolidated balance sheets
of Texas Biotechnology Corporation and subsidiary as of December 31, 1998 and
1997, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1998 which report appears in the December 31, 1998, annual report
on Form 10-K of Texas Biotechnology Corporation .
/s/ KPMG LLP
Houston, Texas
May 27, 1999
