<PAGE>
As filed with the Securities and Exchange Commission on October 15, 1997
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ANSAN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3171943
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
SUITE 435, 400 OYSTER POINT BOULEVARD, SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-0200
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Principal Executive Offices)
RESTATED 1993 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
(Full Title of the Plans)
VAUGHAN H.J. SHALSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ANSAN PHARMACEUTICALS, INC.
SUITE 435, 400 OYSTER POINT BOULEVARD
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(Name and Address of Agent for Service)
(650) 635-0200
(Telephone Number, Including Area Code, of
Agent for Service)
With copies of all notices and communications to:
------------------------------------------------
AUGUST J. MORETTI, ESQ.
HELLER EHRMAN WHITE & MCAULIFFE
525 UNIVERSITY AVENUE
PALO ALTO, CALIFORNIA 94301
(650) 324-7000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of securities Amount Proposed maximum Proposed maximum Amount of
to be registered to be offering price per aggregate offering registration
registered share (1) price fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock issuable under the 22,085 $1.375 $ 30,367 $ 9.20
Restated 1993 Stock Option Plan, $.001
par value
Common Stock issuable under the 1995 375,000 $1.375 $515,625 $156.25
Stock Option Plan, $.001 par value
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, as
the average of the high and low prices reported on the Nasdaq SmallCap
Market on October 10, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Ansan Pharmaceuticals,
Inc. ("Ansan") with the Securities and Exchange Commission (the "Commission"),
are hereby incorporated by reference in this Registration Statement:
(a) Ansan's Annual Report on Form 10-KSB for the fiscal year ended December
31, 1996;
(b) Ansan's Quarterly Reports on Forms 10-QSB for the quarterly periods
ended March 31, 1997 and June 30, 1997, respectively; and
(c) The description of the Common Stock contained in Ansan's Registration
Statement on Form SB-2 (File No. 33-92886) filed June 8, 1995 under the
Securities Act of 1933, as amended (the "Securities Act"), including
any amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by Ansan pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and prior to the termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the respective dates of 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 herein, or in any other subsequently filed document that 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 102 of the General Corporation Law of the State of Delaware (the
"DGCL") allows a corporation to eliminate the personal liability of directors of
a corporation to the corporation or to any of its stockholders for monetary
damage for a breach of his or her fiduciary duty as a director, except in the
case where the director breached his or her duty of loyalty, failed to act in
good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation
of Delaware corporate law or obtained an improper personal benefit. Ansan's
Amended and Restated Certificate of Incorporation, (the "Ansan Restated
Certificate") contains a provision that eliminates directors' personal liability
as set forth above.
Section 145 of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is or was
serving at its request in such capacity in another corporation or business
association against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually
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<PAGE>
and reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
The Ansan Restated Certificate eliminates the liability of directors of
Ansan for monetary damages for breach of their fiduciary duty as directors in
certain circumstances. This provision does not eliminate the liability of a
director (i) for breach of the director's duty of loyalty to Ansan or its
stockholders, (ii) for acts or omissions by the director not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
willful or negligent declaration of an unlawful dividend, stock purchase or
redemption, or (iv) for transactions from which the director derived an improper
personal benefit. Such limitation of liability also does not affect the
availability of equitable remedies such as injunctive relief or rescission.
Ansan believes that it is the position of the Commission that insofar as
the foregoing provision may be invoked to disclaim liability for damages arising
under the Securities Act, the provision is against public policy as expressed in
the Securities Act and is therefore unenforceable. Such limitation of liability
also does not affect the availability of equitable remedies such as injunctive
relief or rescission.
Ansan has entered into indemnification agreements (the "Indemnification
Agreement(s)") with each of its directors and officers. Each such
Indemnification Agreement will provide that Ansan will indemnify the indemnitee
against expenses, including reasonable attorneys' fees, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any civil or criminal action or administrative proceeding
arising out of his performance of his duties as a director or officer, other
than an action instituted by the director or officer. Such indemnification will
be available if the indemnitee acted in good faith and in a matter he reasonably
believed to be in or not opposed to the best interests of Ansan, and, with
respect to any criminal action, had no reasonable cause to believe his conduct
was unlawful. The Indemnification Agreements also require that Ansan indemnify
the director or other party thereto in all cases to the fullest extent permitted
by applicable law. Each Indemnification Agreement will permit the director or
officer that is party thereto to bring suit to seek recovery amounts due under
the Indemnification Agreement and to recover the expenses of such a suit if
successful.
Ansan's By-laws provide that Ansan shall indemnify its directors,
officers, employees or agents to the full extent permitted by the DGCL, and
Ansan shall have the right to purchase and maintain insurance on behalf of any
such person whether or not Ansan would have the power to indemnify such person
against the liability. Ansan has purchased and maintains such insurance on
behalf of its directors and officers with policy limits in the amount of
$1,000,000 primary coverage and $1,000,000 excess coverage.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of Ansan where indemnification will be
required or permitted. Ansan is not aware of any threatened litigation or
proceeding which may result in a claim for indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of Exhibit
5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
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<PAGE>
24.1 Power of Attorney (as provided on page 5 hereof)
99.1 Restated 1993 Stock Option Plan of Ansan (incorporated by reference
from Exhibit 10.2 to the Form SB-2 filed by Ansan, Inc. on June 8,
1995)
99.2 1995 Stock Option Plan of Ansan (incorporated by reference from
Exhibit 10.3 to the Form SB-2 filed by Ansan, Inc. on June 8, 1995)
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
to include any material information with respect to any 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, 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; 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. 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.
ADDITIONAL INFORMATION
----------------------
On July 16, 1997 Ansan entered into an Agreement and Plan of Reorganization
and Merger with Discovery Laboratories, Inc., a Delaware corporation
("Discovery") pursuant to which Discovery shall be merged with and into Ansan.
Subsequent to the completion of this merger, former Discovery stockholders will
own approximately 92% of the shares of the combined entity. Discovery currently
owns certain shares of Preferred Stock of Ansan. In the event that the above
merger is not consummated, this Preferred Stock may convert into such number of
shares of Ansan Common Stock such that Discovery will own more than 50% of the
voting stock of Ansan. A Registration Statement on Form S-4 has been filed with
the Commission by Ansan pursuant to the proposed merger (Commission File No.
333-34337). The foregoing description is not a complete statement of the terms
of the merger and related transactions and is qualified in its entirety by
reference to the above-mentioned Registration Statement on Form S-4.
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<PAGE>
SIGNATURES
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 October
15, 1997.
ANSAN PHARMACEUTICALS, INC.
By: /s/ Vaughan H.J. Shalson
--------------------------------
Vaughan H.J. Shalson
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Louis R.
Bucalo, M.D. and Vaughan H.J. Shalson his or her true and lawful attorneys-in-
fact and agents, each acting alone, with full power of substitution and
resubstitution, for him or her and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to the Registration Statement, and to sign any registration statement for the
same offering covered by this Registration Statement that is to be effective
upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and all post-effective amendments thereto, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, each acting alone, or
his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Louis R. Bucalo Chairman of the Board of Directors October 15, 1997
- -------------------------------------
Louis R. Bucalo, M.D.
/s/ Vaughan H.J. Shalson President, Chief Executive Officer and Director October 15, 1997
- ------------------------------------- (Principal Executive Officer)
Vaughan H.J. Shalson
/s/ James M. Ahlers Director of Finance and Operations (Principal October 15, 1997
- ------------------------------------- Financial and Accounting Officer)
James M. Ahlers
/s/ Lindsay A. Rosenwald Director October 15, 1997
- -------------------------------------
Lindsay A. Rosenwald, M.D.
/s/ Richard Sperber
- ------------------------------------- Director October 15, 1997
Richard Sperber
/s/ Ilan Cohn Director October 15, 1997
- -------------------------------------
Ilan Cohn, Ph.D.
/s/ David Naveh Director October 15, 1997
- -------------------------------------
David Naveh, Ph.D.
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
-----------------
Item No. Description of Item
- -------- -------------------
5.1 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (as provided on page 5 hereof)
99.1 Restated 1993 Stock Option Plan of Ansan (incorporated by
reference from Exhibit 10.2 to the Form SB-2 filed by Ansan, Inc.
on June 8, 1995)
99.2 1995 Stock Option Plan of Ansan (incorporated by reference from
Exhibit 10.3 to the Form SB-2 filed by Ansan, Inc. on June 8,
1995)
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<PAGE>
EXHIBIT 5.1
-----------
October 15, 1997
Ansan Pharmaceuticals, Inc.
Suite 435, 400 Oyster Point Boulevard
South San Francisco, CA 94080
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Ansan Pharmaceuticals, Inc., a Delaware
corporation (the "Corporation"), in connection with the Registration Statement
on Form S-8 (the "Registration Statement") which the Corporation proposes to
file with the Securities and Exchange Commission on October 15, 1997 for the
purposes of registering under the Securities Exchange Act of 1933, as
amended, 397,085 shares of its Common Stock, $.001 par value (the "Stock"). The
Stock is issuable under the Corporation's 1993 and 1995 Stock Option Plans (the
"Plans").
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all records,
documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records, documents
and instruments:
(a) The Restated Certificate of Incorporation of the Corporation,
certified by the Delaware Secretary of State as of October 14, 1997,
and certified to us by an officer of the Corporation as being complete
and in full force as of the date of this opinion;
<PAGE>
(b) The Bylaws of the Corporation certified to us by an officer of the
Corporation as being complete and in full force and effect as of the
date of this opinion;
(c) A Certificate of an officer of the Corporation (i) attaching records
certified to us as constituting all records of proceedings and actions
of the Board of Directors, including any committee thereof, and
stockholders of the Corporation relating to the Plans, and the
Registration Statement, and (ii) certifying as to certain factual
matters;
(d) The Registration Statement;
(e) The Plans; and
(f) A letter from Continental Stock Trust & Transfer Company, the
Corporation's transfer agent, dated October 1, 1997, as to the number
of Stock of the Corporation's Common Stock that were outstanding on
October 1, 1997.
This opinion is limited to the federal law of the United States of America,
the law of the State of California, and the General Corporation Law of the State
of Delaware, and we disclaim any opinion as to the laws of any other
jurisdiction. We further disclaim any opinion as to any other statute, rule,
regulation, ordinance, order or other promulgation of any other jurisdiction or
any regional or local governmental body or as to any related judicial or
administrative opinion.
Based on the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Stock is offered and issued, (ii) the full
consideration stated in the Plans is paid for each share of Stock and that such
consideration in respect of each share of Stock includes payment of cash or
other lawful consideration, (iii) appropriate certificates evidencing the Stock
are executed and delivered by the Corporation, and (iv) all applicable
securities laws are complied with, it is our opinion that when issued and sold
by the Corporation, after payment therefore in the manner provided in the Plans
and Registration Statement, the Stock will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon
by you for any other purpose, or relied upon by any other person, firm,
corporation or other entity for any purpose, without our prior written consent.
We disclaim any obligation to advise you of any change of law that occurs, or
any facts of which we may become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of Ansan Pharmaceuticals, Inc. on Form S-8 of our report dated
February 21, 1997, appearing in the Annual Report on Form 10-KSB for the year
ended December 31, 1996 and Quarterly Reports on Form 10-QSB, for the periods
ended March 31, 1997 and June 30, 1997, respectively, each of Ansan
Pharmaceuticals, Inc.
/s/ Ernst & Young LLP
October 15, 1997
