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As filed with the Securities and Exchange Commission on October 31, 2000.
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
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CV THERAPEUTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 45-1570294
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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3172 PORTER DRIVE
PALO ALTO, CALIFORNIA 94304
(650) 812-0585
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
CV THERAPEUTICS, INC. 2000 NONSTATUTORY INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
---------------------------
LOUIS G. LANGE, M.D., PH.D. COPY TO:
CHIEF EXECUTIVE OFFICER ALAN C. MENDELSON, ESQ.
CV THERAPEUTICS, INC. LATHAM & WATKINS
3172 PORTER DRIVE 135 COMMONWEALTH DRIVE
PALO ALTO, CALIFORNIA 94304 MENLO PARK, CALIFORNIA 94025
(650) 812-0585 (650) 463-4693
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE CHART
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED(1) SHARE (2) PRICE(2) FEE
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Common Stock, par value $.001 per share 250,000 $75.979736 $18,994,934 $5,014.66
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests
to be offered and sold pursuant to the employee benefit plan described herein.
(2) Estimated for the purpose of calculating the registration fee (i)
pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), on the basis of a weighted average exercise price per share
for 73,900 shares subject to options previously granted at $72.50 per share
and (ii) pursuant to Rule 457(c) of the Securities Act for the remaining
176,100 shares available for future grants based on the average high and low
prices for the Registrant's Common Stock at $77.44 as reported on the Nasdaq
National Market on October 30, 2000.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS
SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which were filed with the Securities and
Exchange Commission, are incorporated by reference into this Registration
Statement:
(a) our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) our Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2000 and June 30, 2000;
(c) our Current Reports on Form 8-K, dated February 25, 2000,
March 1, 2000 and August 7, 2000; and
(d) the description our Common Stock contained in our
registration statement on Form 8-A filed on October 30, 1996.
In addition, all documents which we file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after
the date of this Registration Statement and 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 by reference herein and to be a part of this
Registration Statement from the date of the filing of such documents. Any
statement contained in a document 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 this
Registration Statement, or in any other subsequently filed document which also
is or is deemed to be incorporated by reference in this Registration Statement,
modifies or supersedes 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 validity of the issuance of the Common Stock offered in this
prospectus will be passed upon for CV Therapeutics by Latham & Watkins, Menlo
Park, California. Alan C. Mendelson, our Secretary, and a partner of Latham &
Watkins, owns 1008 shares of our Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our certificate of incorporation limits the liability of our directors
to the maximum extent permitted by Delaware law. Delaware law provides that a
director of a corporation will not be personally liable for monetary damages for
breach of such individual's fiduciary duties as a director except for liability
for:
- any breach of such director's duty of loyalty to
the corporation;
- any acts or omissions not in good faith or that
involve intentional misconduct or a knowing
violation of law;
- any unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in
Section 174 of the Delaware General Corporation
Law; or
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- any transaction from which a director derives an
improper personal benefit.
Our bylaws provide that we will indemnify our directors and officers
and may indemnify our employees and other agents to the full extent permitted by
law; PROVIDED, HOWEVER that we are not required to indemnify any director or
officer in connection with any proceeding initiated by such person unless (i)
such indemnification is expressly required to be made by law; (ii) the
proceeding was authorized by our Board of Directors; (iii) such indemnification
is provided by us, in our sole discretion, pursuant to our powers under the
Delaware General Corporation Law; or (iv) such indemnification is required to be
made in connection with enforcement of these indemnification procedures. Our
bylaws permit us to advance expenses incurred by an indemnified party in
connection with the defense of any action or proceeding arising out of such
party's status or service as one of our directors, officers, employees or agents
upon an undertaking by such party to repay such advances if it is ultimately
determined that such party is not entitled to indemnification.
We have entered into indemnification agreements with substantially all
of our officers and directors which provide indemnification under certain
circumstances for acts and omissions which may not be covered by any directors'
and officers' liability insurance.
ITEM 8. EXHIBITS
See the Exhibit Index on Page 7.
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;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this 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) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
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)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
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reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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, 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, as amended
(the "Securities Act"), we certify that we have reasonable grounds to believe
that we meet all of the requirements for filing on Form S-8 and have duly caused
this Registration Statement to be signed on our behalf by the undersigned
thereunto duly authorized, in the city of Palo Alto, County of Santa Clara,
State of California, on the 31st day of October, 2000.
CV THERAPEUTICS, INC.
By: /s/ DANIEL K. SPIEGELMAN
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Daniel K. Spiegelman
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
(Principal financial and accounting officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints LOUIS G. LANGE and DANIEL K. SPIEGELMAN,
jointly and severally, his or her attorneys-in-fact and agents, each with power
of substitution and resubstitution, for him or her and in his or her name, place
or stead, in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to each attorney-in-fact and agent, 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 as he or she might or could do in
person, and ratifying and confirming all that the attorney-in-fact and agents,
or his or her substitute or substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, 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> <C> <C>
/s/ LOUIS G. LANGE Chairman of the Board and Chief October 31, 2000
--------------------------------------------- Executive Officer
Louis G. Lange, M.D., Ph.D. (Principal executive officer)
/s/ DANIEL K. SPIEGELMAN Senior Vice President and Chief October 31, 2000
--------------------------------------------- Financial Officer (Principal financial
Daniel K. Spiegelman and accounting officer)
/s/ THOMAS L. GUTSHALL Director October 31, 2000
---------------------------------------------
Thomas L. Gutshall
/s/ PETER BARTON HUTT Director October 31, 2000
---------------------------------------------
Peter Barton Hutt
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<TABLE>
<S> <C> <C>
/s/ BARBARA J. MCNEIL Director October 31, 2000
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Barbara J. McNeil, M.D., Ph.D.
/s/ J. LEIGHTON READ Director October 31, 2000
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J. Leighton Read, M.D.
/s/ COSTA G. SEVASTOPOULOS Director October 31, 2000
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Costa G. Sevastopoulos, Ph.D.
/s/ R. SCOTT GREER Director October 31, 2000
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R. Scott Greer
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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<S> <C>
4.1 CV Therapeutics, Inc. 2000 Nonstatutory Incentive Plan
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included in Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (included on the signature page to this
Registration Statement).
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