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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 9, 1998
REGISTRATION NO. 333-18725
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO FORM S-4*
UNDER
THE SECURITIES ACT OF 1933
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HOLLIS-EDEN PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3197002
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9333 Genesee Avenue, Suite 110
San Diego, California 92121
(619) 587-9333
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
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NON-PLAN STOCK OPTIONS
1997 INCENTIVE STOCK OPTION PLAN
EMPLOYEE WARRANT
(Full title of the plan)
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Richard B. Hollis
Chief Executive Officer and Chairman of the Board
HOLLIS-EDEN PHARMACEUTICALS, INC.
9333 Genesee Avenue, Suite 110
San Diego, California 92121
(619) 587-9333
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Eric J. Loumeau, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
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* See Explanatory Note following this cover page.
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EXPLANATORY NOTE
Hollis-Eden Pharmaceuticals, Inc. (the "Registrant") hereby amends its
Registration Statement on Form S-4 (File No. 333-18725) (the "Form S-4"), by
filing this Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 (the
"Registration Statement") relating to 3,363,416 shares of Common Stock, $.01 par
value, of the Registrant (the "Common Stock") issuable in connection with the
1997 Incentive Stock Option Plan (the "Plan"), options granted outside of the
Plan (the "Non-Plan Options") and a certain Employee Warrant (the "Warrant").
On March 26, 1997, pursuant to an Agreement and Plan of Merger and
Reorganization, dated as of November 1, 1996 (the "Merger Agreement"),
Hollis-Eden, Inc. was merged with and into the Registrant (the "Merger"). As
provided in the Merger Agreement, each outstanding share of common stock of
Hollis-Eden, Inc. ("Hollis-Eden Common Stock") was converted into the right to
receive one share of the Registrant's Common Stock.
Pursuant to the Merger Agreement, Hollis-Eden, Inc. and the Registrant
have taken such actions as are necessary such that Hollis-Eden Common Stock is
no longer issuable under the Plan, the Non-Plan Options or the Warrants.
Instead, the Registrant's Common Stock is issuable under the Plan and upon
exercise of Non-Plan Options in such amounts and at such prices as adjusted
pursuant to the Plan, the Non-Plan Options and the Merger Agreement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The contents of the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1997, the Form S-4, and the
Company's Current Report on Form 8-K dated March 26, 1997, are hereby
incorporated by reference into this Registration Statement. A description of the
Registrant's Common Stock which is contained in the Form S-4, including any
amendment or reports filed for the purpose of updating such description, is
hereby incorporated by reference into this Registration Statement. All documents
filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c),
14 or 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 have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document 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 herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The class of securities to be offered under this Registration Statement
is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by Delaware law. The Registrant
is also empowered under its Bylaws to enter into indemnification contracts with
its directors and officers and to purchase insurance on behalf of any person
whom it is required or permitted to indemnify. In addition, the Registrant is
required, subject to certain exceptions, to advance all expenses incurred by any
director or executive officer in connection with a completed, pending or
threatened action, suit or proceeding upon receipt of an undertaking by such
director or executive officer to repay all amounts advanced by the Registrant on
such person's behalf if it is ultimately determined that such person is not
entitled to be indemnified under the Bylaws or otherwise.
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The Registrant's Certificate of Incorporation provides that to the
fullest extent permitted under Delaware law, the Registrant's directors will not
be personally liable to the Registrant and its stockholders for monetary damages
for any breach of a director's fiduciary duty. The Certificate of Incorporation
does not, however, 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 is 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 any transaction from which the director derived an
improper personal benefit and for improper distributions to stockholders and
loans to directors and officers. This provision 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 maintains directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Registrant's Amended and Restated Certificate of Incorporation.(1)
4.2 Registrant's Bylaws.(1)
4.3 Specimen Stock Certificate.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the signature page.
99.1 1997 Incentive Stock Option Plan (the "Option Plan").(1)
99.2 Form of Incentive Stock Option Agreement and Nonstatutory Stock
Option Agreement under the Option Plan.(1)
</TABLE>
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(1) Filed as an exhibit to the Registration Statement on Form S-4 (No.
333-18725), and incorporated herein by reference.
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:
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(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 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 end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this 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 this Registration Statement is on Form S-3 or Form S-8 and 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 Exchange Act that are incorporated by
reference in this 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 Section 15(d) of the
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the 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) 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 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
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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 San Diego, State of California, on February 5, 1998.
HOLLIS-EDEN PHARMACEUTICALS, INC.
By /s/ RICHARD B. HOLLIS
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Richard B. Hollis
Chief Executive Officer, Chairman of the Board
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard B. Hollis, Terren S. Peizer and
Robert W. Weber and each of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, 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 attorney-in-fact and
agent, or any of them, or his substitutes or substitute, 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
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<S> <C> <C>
/s/ RICHARD B. HOLLIS Chief Executive Officer, Chairman of February 5, 1998
- --------------------------------- the Board and Director (Principal
Richard B. Hollis Executive Officer)
/s/ TERREN S. PEIZER President and Director February 5, 1998
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Terren S. Peizer
/s/ ROBERT W. WEBER Vice President-Controller (Principal February 5, 1998
- --------------------------------- Financial and Accounting Officer)
Robert W. Weber
/s/ THOMAS CHARLES MERIGAN Chairman of the Scientific Advisory February 5, 1998
- --------------------------------- Board and Director
Thomas Charles Merigan, Jr., M.D.
Director February 5, 1998
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J. Paul Bagley III
/s/ SALVATORE J. ZIZZA Director February 5, 1998
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Salvatore J. Zizza
/s/ BRENDAN R. MCDONNELL Director February 5, 1998
- ---------------------------------
Brendan R. McDonnell
</TABLE>
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Registrant's Amended and Restated Certificate of
Incorporation.(1)
4.2 Registrant's Bylaws.(1)
4.3 Specimen Stock Certificate.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 6.
99.1 1997 IAC Incentive Stock Option Plan (the "Option Plan").(1)
99.2 Form of Incentive Stock Option Agreement under the Option
Plan.(1)
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(1) Filed as an exhibit to the Registration Statement on Form S-4(No.
333-18725), and incorporated herein by reference.
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EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
February 6, 1998
HOLLIS-EDEN PHARMACEUTICALS, INC.
9333 Genesee Avenue, Suite 110
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by HOLLIS-EDEN PHARMACEUTICALS, INC. (the "Company") of a
Post-Effective Amendment on Form S-8 to the Form S-4 Registration Statement
(File No. 333-18725) (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 3,363,416 shares of the
Company's Common Stock, $.01 par value (the "Shares"), for issuance upon
exercise of (i) options granted under the Company's 1997 Incentive Stock Option
Plan (the "Plan"), (ii) options granted outside the Plan (the "Options"), and
(iii) certain warrants granted to an employee of the Company (the "Warrants").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plan, the Options, the Warrants, the Company's
Amended and Restated Certificate of Incorporation and Bylaws, and the originals
or copies certified to our satisfaction of such records, documents,
certificates, memoranda and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us 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, we are of the opinion
that the Shares, when issued and sold in accordance with the Registration
Statement and the Plan, the Options and the Warrants, as the case may be, will
be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
M. Wainwright Fishburn, Jr.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Initial Acquisition Corp.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of the Post Effective Amendment No. 1 on Form S-8 to Form
S-4 of our report dated January 10, 1997, relating to the financial statements
of Initial Acquisition Corp. appearing in the Company's Annual Report on Form
10-K for the year ended December 31, 1996.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
New York, New York
February 6, 1998
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of Hollis-Eden
Pharmaceuticals, Inc., of our report dated April 19, 1996 relating to the
financial statements of Hollis-Eden, Inc. appearing on page F-12 of Hollis-Eden
Pharmaceuticals, Inc.'s Form S-4. We also consent to the incorporation by
reference of our report dated February 26, 1997 except as to paragraphs 1 and 3
of Note 10, which are as of March 27, 1997 relating to the financial statements
of Hollis-Eden, Inc. appearing on page 6 of Hollis-Eden Pharmaceuticals, Inc.'s
Form 8-K dated March 26, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Portland, Oregon
February 6, 1998
