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As filed with the Securities and Exchange Commission on October 14, 1999
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
RIBOZYME PHARMACEUTICALS, INC.
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 34-1697351
-------------- -------------
(State or Other (IRS Employer
Jurisdiction of Identification
Incorporation or Organization) Number)
2950 Wilderness Place Boulder, CO 80301
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(Address of Principal Executive Offices)
1996 STOCK OPTION PLAN
----------------------
(Full Title of Plan)
Ralph E. Christoffersen, Ph.D. Copies to:
Chief Executive Officer and President ----------
Ribozyme Pharmaceuticals, Inc. Karen L. Witt, Esq.
2950 Wilderness Place Rothgerber Johnson & Lyons LLP
Boulder, Colorado 80301 1200 17th Street, Suite 3000
- --------------------------------------- Denver, Colorado 80202
(Name and Address of Agent for Service) (303) 623-9000
(303) 449-6500
- ---------------------------------------
(Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
Title of Amount to Maximum Maximum
Securities be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock 350,000 $6.4375(2) $2,253,125(2) $626.37
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
shares which by reason of certain events specified in the plan may become
subject to the plan.
(2) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum aggregate
offering price are estimated solely for purposes of calculating the
registration fee and are based upon the average of the high and low prices
of the Common Stock as quoted on the NASDAQ National Market on
October 13, 1999.
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TABLE OF CONTENTS
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Page
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT............... II - 1
Item 3. Incorporation of Documents by Reference................. II - 1
Item 5. Interests of Named Experts and Counsel.................. II - 1
Item 6. Indemnification of Directors and Officers............... II - 2
Item 8. Exhibits................................................ II - 3
Item 9. Undertakings............................................ II - 3
SIGNATURES........................................................... II - 5
EXHIBIT INDEX........................................................ II - 6
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, all of which were previously filed by Ribozyme
Pharmaceuticals, Inc. (the "Company") (No. 0-27914) with the Commission
pursuant to the Securities Exchange Act of 1934, as amended ("Exchange Act"),
are hereby incorporated by reference:
(1) the Company's Annual Report on Form 10-K and Amendment No. 1 to Form
10-K for the year ended December 31, 1998;
(2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1999;
(3) the Company's Current Report on Form 8-K dated March 19, 1999, and
Amendments No. 1 - 3 thereto dated May 28, 1999, June 9, 1999, and June 16,
1999, respectively; and
(4) the description of the common stock of the Company, par value $0.01
(the "Company Stock"), contained in the Company's Registration Statement on
Form 8-A, filed by the Company under Section 12 of the Exchange Act.
All documents subsequently filed by the Company with the Commission
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 hereby have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated in this Registration
Statement by reference and to be a part hereof from the date of filing such
documents. Any statement contained herein or in a document, all or a portion
of which is incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or replaces such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Company Stock registered pursuant to this
Registration Statement will be passed upon for the Company by the law firm of
Rothgerber Johnson & Lyons LLP, One Tabor Center, Suite 3000, 1200 17th
Street, Denver, Colorado 80202, which has served as special counsel to the
Company in the preparation of this Registration Statement. No members of
this law firm have a substantial interest in the Company or are employed on a
contingent basis by the Company.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Nine of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall, in the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said Section from and
against any and all of the expenses, liabilities or other matters referred to
in or covered by said Section. Such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or an agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person.
The Company maintains directors' and officers' liability insurance which
covers certain liabilities and expenses of officers and directors of the
Company and covers the Company for reimbursement of payments to directors and
officers in respect of such liabilities and expenses.
With respect to indemnification, Section 145 of the Delaware General
Corporation Law provides, among other things, 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 the 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, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which the person 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 reasonable cause to believe that the person's
conduct was unlawful.
Section 145 of the Delaware General Corporation Law also provides 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 the fact that the 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, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person 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
II-2
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the Court of Chancery or 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 of
Chancery or such other court shall deem proper.
ITEM 8. EXHIBITS
THE COMPANY HEREBY UNDERTAKES THAT IT WILL SUBMIT OR HAS SUBMITTED ANY OF
THE PLANS INTENDED TO BE QUALIFIED UNDER SECTION 401 OF THE INTERNAL REVENUE
CODE AND ANY AMENDMENT THERETO TO THE INTERNAL REVENUE SERVICE (THE "IRS") IN
A TIMELY MANNER AND HAS MADE OR WILL MAKE ALL CHANGES REQUIRED BY THE IRS IN
ORDER TO QUALIFY THE PLAN.
The following exhibits are attached to this registration statement:
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<S> <C>
4.1 1996 Stock Option Plan*
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in Exhibit 5
hereto)
24 Power of Attorney
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- -------------------
* Incorporated by Reference from Exhibit 4.2 to Form S-8 filed June 11, 1997,
SEC File No. 333-28991.
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to 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 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.
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(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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.
(h) FILING OF REGISTRATION STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 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 Company
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 Boulder and the State of Colorado, on this 14th day
of October, 1999.
RIBOZYME PHARMACEUTICALS, INC.
/s/ Ralph E. Christoffersen
By:
------------------------------------
Ralph E. Christoffersen, Ph.D., Chief
Executive Officer, President and Director
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Ralph E. Christoffersen Chief Executive Officer, October 14, 1999
- --------------------------- President and Director
Ralph E. Christoffersen, Ph.D. (Principal Executive Officer)
/s/ Lawrence E. Bullock Vice President, October 14, 1999
- --------------------------- Administration Finance,
Lawrence E. Bullock Chief Financial Officer
and Secretary (Principal
Financial and Accounting
Officer)
/s/ David T. Morgenthaler Chairman of the Board of October 14, 1999
- --------------------------- Directors
David T. Morgenthaler
/s/ Jeremy C. Cook Director October 14, 1999
- ---------------------------
Jeremy C. Cook
/s/ Anthony B. Evnin Director October 14, 1999
- ---------------------------
Anthony B. Evnin, Ph.D.
Director
- ---------------------------
David Ichikawa
Director
- ---------------------------
Anders Wiklund
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 1996 Stock Option Plan*
5 Opinion of Rothgerber Johnson & Lyons LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Rothgerber Johnson & Lyons LLP (included in
Exhibit 5 hereto)
24 Power of Attorney
</TABLE>
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* Incorporated by Reference from Exhibit 4.2 of Form S-8 filed June 11, 1997,
SEC File No. 333-28991.
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EXHIBIT 5
October 14, 1999
Ribozyme Pharmaceuticals, Inc.
2950 Wilderness Place
Boulder, Colorado 80301
Ladies and Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which is expected to be
filed by Ribozyme Pharmaceuticals, Inc. (the "Company") on or about October
14, 1999, with respect to the offer and sale of 350,000 additional shares of
the Company's common stock, $.01 par value ("Company Stock"), issuable under
the Company's 1996 Stock Option Plan (the "Plan") as described in the
Registration Statement.
We have examined such records and documents and have made such
investigations of law as we have deemed necessary under the circumstances.
Based on that examination and investigation, it is our opinion that the
shares of Company Stock referred to above will be, when sold in accordance
with the Plan and in the manner described in the Registration Statement,
validly issued, fully paid and non-assessable.
We consent to the use in the Registration Statement of our name and the
statement with respect to our firm under the heading of "Interests of Named
Experts and Counsel."
Sincerely yours,
ROTHGERBER JOHNSON & LYONS LLP
/s/ Rothgerber Johnson & Lyons LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated February 16,
1999, with respect to the financial statements of Ribozyme Pharmaceuticals,
Inc., included in its Annual Report (Form 10-K) for the year ended December
31, 1998, filed with the Securities and Exchange Commission, in the
Registration Statement (Form S-8) pertaining to the 1996 Stock Option Plan.
/s/ Ernest & Young L.L.P.
Denver, Colorado
October 13, 1999
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EXHIBIT 24
POWER OF ATTORNEY
Each person executing this Power of Attorney hereby appoints Karen L.
Witt, Esq. and Lawrence E. Bullock, or either of them, as his
attorney-in-fact to execute and to file such amendments to this Form S-8
Registration Statement as such attorneys-in-fact, or either of them, may deem
appropriate or withdraw from the registration process this Registration
Statement.
RIBOZYME PHARMACEUTICALS, INC.
By: /s/ Ralph E. Christoffersen
------------------------------------
Ralph E. Christoffersen, Ph.D.,
President, CEO and Director
Signature Title Date
- --------- ----- -----
/s/ Ralph E. Christoffersen CEO, President October 14, 1999
- --------------------------- and Director (Principal
Ralph E. Christoffersen, Ph.D. Executive Officer)
/s/ Lawrence E. Bullock Vice President, October 14, 1999
- --------------------------- Administration Finance,
Lawrence E. Bullock Chief Financial Officer
and Secretary (Principal
Financial and Accounting
Officer)
Director
- ---------------------------
David T. Morgenthaler
Director
- ---------------------------
Jeremy C. Cook
/s/ Anthony B. Evnin Director October 14, 1999
- ---------------------------
Anthony B. Evnin, Ph.D.
/s/ David Ichikawa Director October 14, 1999
- ---------------------------
David Ichikawa
/s/ Anders Wiklund Director October 14, 1999
- ---------------------------
Anders Wiklund
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