As filed with the Securities and Exchange Commission on January 14, 2000
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORPHAN MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1784594
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
13911 Ridgedale Drive
Minnetonka, Minnesota 55305
(Address of Principal Executive Offices)
ORPHAN MEDICAL, INC. EMPLOYEE STOCK PURCHASE PLAN
(full title of the plan)
Mr. John Howell Bullion Copy to:
Chief Executive Officer John T. Kramer, Esq.
Orphan Medical, Inc. Dorsey & Whitney LLP
13911 Ridgedale Drive Pillsbury Center South
Minnetonka, Minnesota 55305 220 South Sixth Street
(Name and address of agent for service) Minneapolis, Minnesota 55402-1498
(612) 340-8702
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be registered registered (1) Price per Share (2) Offering Price (2) Registration Fee (2)
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 200,000 $5.44 $1,088,000 $288
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) The number of shares being registered represents the number of shares
of Common Stock that may be issued pursuant to the Orphan Medical, Inc.
Employee Stock Purchase Plan (the "Plan").
(2) Determined pursuant to Rule 457(c), based on the average of the high
and low sale prices of the Common Stock as reported on the Nasdaq
National Market System on January 10, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by Orphan Medical, Inc.
(the "Company") with the Securities and Exchange Commission, are hereby
incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K for the year ended December 31,
1998;
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999 and September 30, 1999;
3. The Proxy Statement of the Company for the annual meeting of
stockholders held May 26, 1999; and
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, dated March 11,
1996 (File No. 333-2200), and any amendment or report filed to
update such description filed subsequent to the date of this
Prospectus and prior to the termination of the offering of the
Common Stock offered hereby.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date hereof 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 hereof from the respective
dates of filing of such documents. Any statement contained herein or in a
document all or part of which is 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 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 so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 302A.521 of the Minnesota Business Corporation Act provides
that, unless prohibited or limited by a corporation's articles of incorporation
or bylaws, a corporation must indemnify its current and former officers,
directors, employees and agents against expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement and which were
incurred in connection with actions, suits or proceedings in which such person
are parties by reason of the fact that they are or were an officer, director,
employee or agent of the corporation, if they (i) have not been indemnified by
another organization, (ii) acted in good faith, (iii) received no improper
personal
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<PAGE>
benefit, (iv) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful, and (v) reasonably believed that the conduct
was in the best interests of the corporation. Section 302A.521 also permits a
corporation to purchase and maintain insurance on behalf of its officers,
directors, employees and agents against any liability which may be asserted
against, or incurred by, such persons in their capacities as officers,
directors, employees and agents of the corporation, whether or not the
corporation would have been required to indemnify the person against the
liability under the provisions of such section.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
----------- -----------
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Counsel to the Company (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (included in signature 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;
(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 Securities and Exchange
Commission pursuant to Rule 424(b) of the Securities
Act 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; 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 paragraphs A(1)(i) and A(1)(ii) above will 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 registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
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<PAGE>
(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 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 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 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 other 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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<PAGE>
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 Minnetonka, State of Minnesota, on January 14, 2000.
Orphan Medical, Inc.
By: /s/ John Howell Bullion
-------------------------------------
John Howell Bullion
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John Howell Bullion and Tim
McGrath, and each of them (with full power to each of them to act alone), his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities (including his or her capacity as a
director and/or officer of Orphan Medical, Inc.), to sign any or all amendments
(including post-effective amendments) to a registration statement, on Form S-8
for the sale of shares of Orphan Medical, Inc. Common Stock pursuant to the
Orphan Medical, Inc. Employee Stock Purchase Plan, and to file the same, with
all exhibits thereto, and other documents and instrument in connection
therewith, with the Securities and Exchange Commission (or any other
governmental or regulatory authority), 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 and about the premises
in order to effectuate the same, 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, 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 stated and on January 14, 2000.
SIGNATURE Title
/s/ John Howell Bullion Chief Executive Officer and Director
- ------------------------------- (principal executive officer)
John Howell Bullion
/s/ Tim McGrath Chief Financial Officer,
- ------------------------------- (principal financial and accounting officer)
Tim McGrath
/s/ Michael Greene
- -------------------------------
Michael Greene Director
/s/ W. Leigh Thompson
- -------------------------------
W. Leigh Thompson Director
/s/ Julius A. Vida
- -------------------------------
Julius A. Vida, Ph.D. Director
/s/ William M. Wardell
- -------------------------------
William M. Wardell Director
/s/ Lawrence C. Weaver
- -------------------------------
Lawrence C. Weaver Director
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<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Counsel to the Company (included in Exhibit 5.1)
23.2 Consent of Independent Accountants
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EXHIBIT 5.1
[LETTERHEAD OF DORSEY & WHITNEY LLP]
January 14, 2000
Orphan Medical, Inc.
13911 Ridgedale Drive
Minnetonka, Minnesota 55305
Ladies and Gentlemen:
We have acted as counsel to Orphan Medical, Inc., a Minnesota corporation (the
"Company"), in connection with a Registration Statement on Form S-8 (the
"Registration Statement") relating to the sale by the Company from time to time
of up to 200,000 shares of Common Stock, $.01 par value per share, of the
Company (the "Shares"), issuable pursuant to the Company's Employee Stock
Purchase Plan (the "Plan").
We have examined such documents and have reviewed such questions of law as we
have considered necessary and appropriate for the purposes of the opinions set
forth below.
In rendering our opinions, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures and the
conformity to authentic originals of all documents submitted to us as copies. We
have also assumed the legal capacity for all purposes relevant hereto of all
natural persons and, with respect to all parties to agreements or instruments
relevant hereto other than the Company, that such parties had the requisite
power and authority (corporate or otherwise) to execute, deliver and perform
such agreements or instruments, that such agreements or instruments have been
duly authorized by all requisite action (corporate or otherwise), executed and
delivered by such parties and that such agreements or instruments are the valid,
binding and enforceable obligations of such parties. As to questions of fact
material to our opinions, we have relied upon certificates of officers of the
Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, upon issuance, delivery and payment therefor in accordance with
the terms of the Plan, will be validly issued, fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
JTK
EXHIBIT 23.2
Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Orphan Medical, Inc. Employee Stock Purchase Plan of
our report dated February 5, 1999 with respect to the financial statements and
schedule of Orphan Medical, 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
Minneapolis, Minnesota
January 14, 2000
