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As filed with the Securities and Exchange Commission on September 29, 1997
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
_____________________________
ARRIS PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
_____________________________
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DELAWARE 22-2969941
(State of Incorporation) (I.R.S. Employer Identification No.)
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180 KIMBALL WAY
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 829-1000
(Address and telephone number of principal executive offices)
_____________________________
1997 NON-OFFICER EQUITY INCENTIVE PLAN
_____________________________
(FULL TITLE OF PLAN)
JOHN P. WALKER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ARRIS PHARMACEUTICAL CORPORATION
180 KIMBALL WAY
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 829-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
ALAN C. MENDELSON, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CALIFORNIA 94306
(650) 843-5000
____________________________
CALCULATION OF REGISTRATION FEE
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======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
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Stock Options and
Common Stock (par 1,000,000 $13.18 - 15.375 $14,853,596.88 $4,501.08
value $.001)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1). The price per
share and aggregate offering prices are based upon (i) $13.17 the
average exercise price of 236,464 outstanding options to purchase
Common Stock pursuant to Registrant's 1997 Non-Officer Equity
Incentive Plan and (ii) $15.375, the last sale of Registrant's Common
Stock on September 23, 1997, as reported on the Nasdaq National
Market.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Arris Pharmaceutical Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or either (1) the Company's latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements for the Company's
latest fiscal year for which such statements have been filed, or (2) the
Company's effective registration statement on Form 10 or 20-F filed under the
Exchange Act containing audited financial statements for the Company's latest
fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
reports, the prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is
contained in a registration statement filed 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.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP ("Cooley Godward"), Palo
Alto, California. Cooley Godward and certain attorneys in such firm own an
aggregate of approximately 16,357 shares of the Company's Common Stock. Alan
C. Mendelson, a partner of Cooley Godward, is a director and the Secretary of
the Company.
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. The Company's Bylaws also provide the Company will indemnify its
directors and executive officers, and may indemnify its other officers,
employees and other agents, to the fullest extent not prohibited by Delaware
law.
The Company's Certificate of Incorporation provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such an injunctive or other forms of non-monetary relief
will remain available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director's duty of
loyalty to the Company, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for any transaction from
which the director derived an improper personal benefit, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The 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 Company has entered into agreements with its directors and
executive officers that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Company and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
In addition, the Company has entered into certain agreements in
connection with the Company's equity financings which provide for the
indemnification of directors and officers in certain circumstances, including
indemnification for liabilities arising under the Securities Act of 1933, as
amended. The Company also maintains an insurance policy for its directors and
officers insuring against certain liabilities arising in their capacities as
such.
2.
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EXHIBITS
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EXHIBIT
NUMBER
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5 Opinion of Counsel.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel. Reference is made to Exhibit 5.1.
24 Power of Attorney is contained on the signature page II-1.
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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 end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) (Section
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 the
registration statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(i) and (a)(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 by the issuer pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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 herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(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 Section 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 herein, 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 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.
3.
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SIGNATURES
THE REGISTRANT. 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 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 September 29, 1997.
ARRIS PHARMACEUTICAL CORPORATION
By: /s/ John P. Walker
--------------------------------
John P. Walker
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John P. Walker and Frederick J.
Ruegsegger, and each or any one 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 attorneys-in-fact and agents, or any of them, or their or his
substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
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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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Signature Title Date
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/s/ John P. Walker President, Chief Executive September 22, 1997
- --------------------------------------- Officer and Director
John P. Walker (Principal Executive
Officer)
/s/ Frederick J. Ruegsegger Vice President and Chief September 22, 1997
- --------------------------------------- Financial Officer
Frederick J. Ruegsegger (Principal Financial and
Accounting Officer)
/s/ Brook H. Byers Director September 22, 1997
- ---------------------------------------
Brook H. Byers
/s/ Anthony B. Evnin, Ph.D. Director September 22, 1997
- ---------------------------------------
Anthony B. Evnin, Ph.D.
/s/ Donald Kennedy, Ph.D. Director September 22, 1997
- ---------------------------------------
Donald Kennedy, Ph.D.
/s/ Hans U. Sievertsson, Ph.D. Director September 22, 1997
- ---------------------------------------
Hans U. Sievertsson, Ph.D.
/s/ Vaughn M. Kailian Director September 22, 1997
- ---------------------------------------
Vaughn M. Kailian
/s/ Alan C. Mendelson Director September 22, 1997
- ---------------------------------------
Alan C. Mendelson
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Counsel.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to the Signature Page.
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Exhibit 5.1
ALAN C. MENDELSON
Direct: (650) 843-5010
Internet: [email protected]
September 29, 1997
Arris Pharmaceutical Corp.
180 Kimball Way
South San Francisco, CA 94080
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Arris Pharmaceutical Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 1,000,000
shares of the Company's Common Stock, $0.001 par value (the "Shares"), pursuant
to its 1997 Non-Officer Equity Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement
and related Prospectus, your Certificate of Incorporation and Bylaws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. 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 in accordance with the Plan, the Registration
Statement and related Prospectus, will be validly issued, fully paid, and
nonassessable (except as to shares issued pursuant to certain deferred payment
arrangements, which will be fully paid and nonassessable when such deferred
payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Alan C. Mendelson
________________________________________
Alan C. Mendelson
cc: Frederick J. Ruegsegger
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Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1997 Non-Officer Equity Incentive Plan of Arris
Pharmaceutical Corporation of our report dated February 10, 1997 with respect
to the consolidated financial statements of Arris Pharmaceutical Corporation
included in the Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
August 24, 1997
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