As filed with the Securities and Exchange Commission on August 26, 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
Titan Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
94-3171940
(I.R.S. employer identification no.)
400 Oyster Point Blvd., South San Francisco, California 94080
(Address of principal executive offices) (Zip code)
Titan Pharmaceuticals, Inc. 1998 Stock Option Plan
(Full title of the plan)
Louis R. Bucalo, M.D., Chief Executive Officer
Titan Pharmaceuticals, Inc.
400 Oyster Point Blvd.
South San Francisco, California 94080
(Name and address of agent for service)
(650) 244-4990
(Telephone number, including area code, of agent for service)
Copies to:
Fran Stoller, Esq.
Bachner Tally & Polevoy LLP
380 Madison Avenue
New York, New York 10017
(212) 687-7000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of each Class of Amount to Price Per Offering Registration
Securities to be Registered be Registered(1) Share(2) Price Fee
- --------------------------- ---------------- -------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 1,225,888 shares(3) $ 7.69 $9,427,079 $2,621.00
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(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, an additional undeterminable number of shares of Common Stock is
being registered to cover any adjustment in the number of shares of Common
Stock pursuant to the anti-dilution provisions of the 1998 Stock Option
Plan (the "Plan").
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price shown is the average of the
high and low price of the Common Stock on August 23, 1999 as reported by
the American Stock Exchange.
(3) Includes 225,888 shares subject to substitute options granted under the
Plan in connection with a merger transaction.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which we have filed with the Commission
(File No. 0-27436) pursuant to the Exchange Act of 1934 are incorporated herein
by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,1998,
including any documents or portions thereof incorporated by reference therein;
2. Our definitive Proxy Statement dated August 6, 1999;
3. Our Quarterly Report on Form 10-Q for the period ended March 31, 1999;
4. Our Quarterly Report on Form 10-Q for the period ended June 30, 1999;
5. Our Registration Statement on Form 8-A registering the common stock and class
A warrants under the Exchange Act; and
6. All other documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this prospectus 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.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this prospectus.
We will provide without charge to each person to whom this prospectus is
delivered, upon written or oral request of any such person, a copy of any or all
of the documents incorporated herein by reference, other than exhibits to such
documents which are not specifically incorporated by reference into such
documents. Requests for documents should be directed to us at 400 Oyster Point
Boulevard, South San Francisco, California 94080, Attention: Chief Financial
Officer, telephone (650) 244-4990.
Item 6. Indemnification of Directors and Officers
The Amended and Restated Certificate of Incorporation and By-Laws of the
Registrant provides that the Registrant shall indemnify any person to the full
extent permitted by the Delaware General
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<PAGE>
Corporation Law (the "GCL"). Section 145 of the GCL, relating to
indemnification, is hereby incorporated herein by reference.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or controlling persons of the Registrant pursuant to the Registrant's
By-laws and the Delaware General Corporation Law, the Registrant has been
informed 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.
The Registrant's Amended and Restated Certificate of Incorporation
includes certain provisions permitted pursuant to Delaware law whereby officers
and directors of the Registrant are to be indemnified against certain
liabilities. The Registrant's Amended and Restated Certificate of Incorporation
also limits, to the fullest extent permitted by Delaware law, a director's
liability for monetary damages for breach of fiduciary duty, including gross
negligence, except liability for (i) breach of the director's duty of loyalty,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law, (iii) the unlawful payment of a dividend or
unlawful stock purchase or redemption and (iv) any transaction from which the
director derives an improper personal benefit. Delaware law does not eliminate a
director's duty of care and this provision has no effect on the availability of
equitable remedies such as injunction or rescission based upon a director's
breach of the duty of care.
In accordance with Section 102(a)(7) of the GCL, the Amended and Restated
Certificate of Incorporation of the Registrant eliminates the personal liability
of directors to the Registrant or its Shareholders for monetary damages for
breach of fiduciary duty as a director with certain limited exceptions set forth
in Section 102(a)(7).
The Registrant also has entered into indemnification agreements with each
of its executive officers and directors, the form of which is filed as Exhibit
10.6 to the Registrant's Registration Statement on Form SB-2 (File No.
33-99386).
Item 8. Exhibits
4.1 Titan Pharmaceuticals, Inc. 1998 Stock Option Plan*
5 Opinion of Bachner Tally & Polevoy LLP with respect to the
legality of the Common Stock to be registered hereunder
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Bachner Tally & Polevoy LLP (contained in Exhibit 5)
24 Power of Attorney (included on signature page)
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* Incorporated by reference to Exhibit 10.30 to the Registrant's Annual Report
on 10-K for the year ended December 31, 1998.
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<PAGE>
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;
(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;
(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.
(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
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) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant as described above, 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 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 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 the City of South San Francisco, State of California, on the 25th
day of August, 1999.
TITAN PHARMACEUTICALS, INC.
By: /s/ Louis R. Bucalo
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Louis R. Bucalo, M.D., Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signature" constitutes and appoints Louis R. Bucalo and
Robert E. Farrell or either 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 or all 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, each acting alone,
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 for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Louis R. Bucalo
- --------------------------- President, Chief Executive Officer and August 25, 1999
Louis R. Bucalo, M.D. Director (Principal Executive Officer)
/s/ Ernst-Gunter Afting Director August 25, 1999
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Ernst-Gunter Afting
/s/ Eurelio Cavalier Director August 25, 1999
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Eurelio Cavalier
/s/ Victor J. Bauer Director August 25, 1999
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Victor J. Bauer
/s/ Michael K. Hsu Director August 25, 1999
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Michael K. Hsu
/s/ Hubert Huckel Director August 25, 1999
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Hubert Huckel, M.D.
/s/ Marvin Jaffe Director August 25, 1999
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Marvin Jaffe, M.D.
/ Konrad M. Weis Director August 25, 1999
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Konrad M. Weis
/s/ Kenneth J. Widder Director August 25, 1999
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Kenneth J. Widder, M.D.
/s/ Robert E. Farrell Chief Financial Officer (Principal August 25, 1999
- --------------------------- Financial and Accounting Officer)
Robert E. Farrell
</TABLE>
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Exhibit 5
August 25, 1999
Titan Pharmaceuticals, Inc.
400 Oyster Point Blvd.
South San Francisco, CA 94080
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as your counsel in connection with the preparation of
your Registration Statement on Form S-8 to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, representing
the offering and issuance to certain persons under the Titan Pharmaceuticals,
Inc. 1998 Stock Option Plan of an aggregate of 1,225,888 shares of your Common
Stock, $.001 par value (the "Common Stock").
We have examined such corporate records, documents and matters of
law as we have considered appropriate for the purposes of this opinion.
Based upon such examination and our participation in the preparation
of the Registration Statement, is it our opinion that the Common Stock, when
issued in the manner described in the Plan, will be validly issued, fully paid
and non-assessable.
We consent to the reference made to our firm in the Registration
Statement and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
BACHNER TALLY & POLEVOY LLP
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Titan Pharmaceuticals, Inc. 1998 Stock Option Plan
of our report dated February 12, 1999, with respect to the consolidated
financial statements of Titan Pharmaceuticals, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
August 25, 1999
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