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As filed with the Securities and Exchange Commission on January 11, 1999
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
COCENSYS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0538836
(State of Incorporation) (I.R.S. Employer Identification No.)
201 TECHNOLOGY DRIVE
IRVINE, CALIFORNIA 92618
(Address of principal executive offices)
1995 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
1998 NON-OFFICER EQUITY INCENTIVE PLAN
(Full title of the plans)
ROBERT R. HOLMEN
VICE PRESIDENT & GENERAL COUNSEL
COCENSYS, INC.
201 TECHNOLOGY DRIVE
IRVINE, CALIFORNIA 92618
(949) 753-6100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered (1) Price per Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value 2,200,000 $0.328 - $1.125 $2,281,449 $635
$.001 per share
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</TABLE>
(1) Includes 200,000 shares issuable under the 1995 Employee Stock Purchase
Plan, as amended (the "1995 Plan"), and 2,000,000 shares issuable under the
1998 Non-Officer Equity Incentive Plan (the "1998 Plan"). Excludes 350,000
shares issuable under the 1995 Plan previously registered with the
Securities and Exchange Commission on Form S-8.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The price per share and
aggregate offering price are based upon (a) the weighted average exercise
price of $1.125 for 651,593 shares subject to options previously granted
under the 1998 Plan, and (b) the average of the high and low trading prices
of Registrant's Common Stock on January 5, 1999 as reported on the Nasdaq
National Market of $0.328 for 1,348,407 shares available for issuance under
the 1998 Plan and 200,000 shares available for issuance under the 1995
Plan.
Page 1 of 8
Exhibit Index appears on Page 6
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PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by CoCensys, Inc., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Company's Current Report on Form 8-K, filed October 23, 1998, and
the Company's Current Report on Form 8-K, filed December 8, 1998.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed December 10, 1992, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such description; and the
description of the Preferred Share Purchase Rights contained in the Company's
Registration Statement on Form 8-A, filed May 16, 1995, under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company 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 shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Robert R. Holmen, who has passed on certain legal matters with respect to
the validity of the shares offered hereby, is Vice President, General Counsel
and Secretary of the Company. Mr. Holmen is not eligible to receive benefits
under the 1998 Plan and is not currently a participant under the 1995 Plan. Mr.
Holmen is the beneficial owner of 16,667 shares of common stock of the Company,
all of which are subject to stock options exercisable within 60 days of the date
of this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act"). The Company's Bylaws require the
Company to indemnify its directors and executive officers and permit the Company
to indemnify its other officers, employees and other agents, to the fullest
extent permitted by Delaware law; provided, however, that the Company may limit
the extent of such indemnification by individual contracts with its directors
and executive officers; and provided further, that the Company shall not be
required to indemnify any director or executive officer in connection with any
proceeding (or part thereof) initiated by such person or employees or other
agents unless (i) such indemnification is expressly required to be made by law,
(ii) the proceeding was authorized by the Board of Directors of the Company, or
(iii) such indemnification is provided by the Company, in its sole discretion,
pursuant to the powers vested in the Company under the Delaware General
Corporation Law. The Bylaws also require the Company to advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by any director or executive officer in connection with such
proceeding, upon receipt of an undertaking by or on behalf of such person
Page 2 of 8
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to repay said amounts if it should be determined ultimately that such person is
not entitled to be indemnified under the Company's Bylaws or otherwise.
The Company has entered into indemnity agreements with its directors and
executive officers. Such indemnity agreements contain provisions which are in
some respects broader that the specific indemnification provisions contained in
Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5 Opinion of Robert R. Holmen, General Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Robert R. Holmen is contained in Exhibit 5 to this
Registration Statement
24 Power of Attorney is contained on the signature pages
99.1 Registrant's 1995 Employee Stock Purchase Plan, as amended
99.2 Registrant's 1998 Non-Officer Equity Incentive Plan and Form of
Agreement
</TABLE>
ITEM 9. UNDERTAKINGS
1. The undersigned 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 and 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 a 20 percent 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 paragraph (a)(ii) does not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Commission by the
registrant pursuant to Section 13 or 15(d) o the Exchange Act that are
incorporated by reference in the registration statement.
(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.
Page 3 of 8
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(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 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 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 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 that 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, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing of 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 Irvine, State of California, on January 8, 1999.
COCENSYS, INC.
/s/ F. RICHARD NICHOL
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F. Richard Nichol, Ph.D.
President, Chief Executive Officer & Chairman
of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints F. RICHARD NICHOL and ROBERT R. HOLMEN,
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said 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 connection therewith, 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, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
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
<S> <C> <C>
/s/ F. RICHARD NICHOL President, Chief Executive Officer January 8, 1999
- ------------------------------ and Chairman of the Board
F. Richard Nichol, Ph.D.
/s/ ROBERT R. HOLMEN Vice President, General Counsel January 8, 1999
- ------------------------------ and acting Chief Financial Officer
Robert R. Holmen
/s/ JAMES C. BLAIR Director December 16, 1998
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James C. Blair, Ph.D.
/s/ KELVIN W. GEE Director December 16, 1998
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Kelvin W. Gee, Ph.D.
/s/ ALAN C. MENDELSON Director December 16, 1998
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Alan C. Mendelson
/s/ TIMOTHY J. RINK Director December 16, 1998
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Timothy J. Rink, M.D.
/s/ ROBERT L. ROE Director December 16, 1998
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Robert L. Roe, Ph.D.
/s/ LOWELL E. SEARS Director December 16, 1998
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Lowell E. Sears
/s/ ECKARD WEBER Director December 16, 1998
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Eckard Weber, M.D.
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Page 5 of 8
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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<S> <C> <C>
5 Opinion of Robert R. Holmen, General Counsel 7
23.1 Consent of Independent Auditors 8
23.2 Consent of Robert R. Holmen is contained in
Exhibit 5 to this Registration Statement 7
24 Power of Attorney is contained on the signature page 5
99.1 Registrant's 1995 Employee Stock Purchase Plan, as amended *
99.2 Registrant's 1998 Non-Officer Equity Incentive Plan and Form of
Agreement **
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</TABLE>
* Incorporated by reference to Appendix A to the Company's Definitive Proxy
Statement on Schedule 14A, filed with the Securities and Exchange
Commission on April 29, 1998.
** Incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998, filed with the
Securities and Exchange Commission on November 9, 1998.
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EXHIBIT 5
[CoCensys, Inc. Letterhead]
January 8, 1999
CoCensys, Inc.
201 Technology Drive
Irvine, CA 92618
Ladies and Gentlemen:
You have requested my opinion as General Counsel of CoCensys, Inc., a Delaware
corporation (the "Company") with respect to certain matters in connection with
the filing by the Company of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission covering
the offering of the following shares (the "Shares"): (i) up to 200,000 shares
of the Company's Common Stock, $.001 par value (the "Common Stock"), pursuant to
the Company's 1995 Employee Stock Purchase Plan, as amended (the "1995 Plan"),
and (ii) up to 2,000,000 shares of Common Stock pursuant to the Company's 1998
Non-Officer Equity Incentive Plan (the "1998 Plan").
In connection with this opinion, I have examined the Registration Statement, the
1995 Plan and related Prospectus, the 1998 Plan and related Prospectus, your
Amended and Restated Certificate of Incorporation, as amended, and Bylaws, and
such other documents, records, certificates, memoranda and other instruments as
I deem necessary as a basis for this opinion. I have assumed the genuineness
and authenticity of all documents submitted to me as originals, the conformity
to originals of all documents submitted to me as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, I am of the opinion that
the Shares, when sold and issued in accordance with the 1995 Plan and related
Prospectus or the 1998 Plan and related Prospectus, as applicable, and the
Registration Statement, will be validly issued, fully paid, and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ ROBERT R. HOLMEN
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Robert R. Holmen
General Counsel
Page 7 of 8
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 200,000 shares issuable under the 1995 Employee Stock
Purchase Plan, as amended, and the 2,000,000 shares issuable under the 1998
Non-Officer Equity Incentive Plan of CoCensys, Inc., of our report dated
February 6, 1998, with respect to the consolidated financial statements of
CoCensys, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Irvine, California
January 8, 1999
Page 8 of 8
