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As filed with the Securities and Exchange Commission on August 21, 1997
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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VIROPHARMA INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 23-2789550
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
76 Great Valley Parkway
Malvern, Pennsylvania 19355
(Address of principal executive offices) (Zip Code)
VIROPHARMA INCORPORATED
1995 STOCK OPTION PLAN
(Full title of the plan)
CLAUDE H. NASH, Ph.D.
President and Chief Executive Officer
ViroPharma Incorporated
76 Great Valley Parkway
Malvern, Pennsylvania 19355
(Name and address of agent for service)
(610) 651-0200
(Telephone number, including area code, of agent for service)
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Copy of all communications to:
DAVID R. KING, ESQUIRE THOMAS F. DOYLE, ESQUIRE
Morgan, Lewis & Bockius LLP ViroPharma Incorporated
2000 One Logan Square 76 Great Valley Parkway
Philadelphia, PA 19103 Malvern, Pennsylvania 19355
(215) 963-5000 (610) 651-0200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(2) per share (1) offering price (1) registration fee
<S> <C> <C> <C> <C>
Common Stock, $0.002 par value 1,035,780 $15.25 $15,799,534 $4,787.74
- ----------------------------------------------------------------------------------------------------------
Common Stock, $0.002 par value 142,290 $15.25 $ 2,169,923 $ 657.55
- ----------------------------------------------------------------------------------------------------------
Total 1,178,070 $15.25 $17,969,457 $5,445.29
==========================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee, based upon the average of the high and low sales prices
of shares of Common Stock on August 19, 1997, as reported on the Nasdaq
National Market.
(2) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement also covers such additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents, as filed by ViroPharma Incorporated (the
"Registrant") with the Securities and Exchange Commission (the "Commission"),
are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1997 and the quarter ended June 30, 1997.
(c) The description of the Common Stock of the Registrant contained in
the Registrant's Registration Statement on Form 8-A, filed by the
Registrant with the Commission on November 8, 1996 to register such
securities under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 hereof.
Experts
-------
The financial statements of ViroPharma Incorporated as of December 31, 1995
and 1996 and for the period from December 5, 1994 (inception) to December 31,
1994, the years ended December 31, 1995 and 1996 and for the period from
December 5, 1994 (inception) to December 31, 1996, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing. To the
extent that KPMG Peat Marwick LLP audits and reports on financial statements of
ViroPharma Incorporated issued at future dates, and consents to the use of their
report thereon, such financial statements also will be incorporated by reference
in this Registration Statement in reliance upon their reports and said
authority.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Delaware General Corporation Law and the Registrant's By-laws provide
for indemnification of the Registrant's directors and officers for liabilities
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and expenses that they may incur in such capacities. In general, directors and
officers are indemnified with respect to actions taken in good faith in a manner
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and with respect to any criminal action or proceeding, actions that
the indemnitee had no reasonable cause to believe were unlawful. Reference is
made to the Registrants's By-laws filed as Exhibit 3.2 to the Registrants's
Registration Statement on Form S-1 (File No. 333-12407).
In addition, certain directors of the Registrant are parties to
indemnification agreements with the Registrant. Pursuant to the agreements, such
directors are to be indemnified against liabilities and expenses incurred in
connection with their services to the Registrant to the fullest extent permitted
by Delaware law. Such indemnification is subject to the directors meeting the
applicable standard of care and to a determination to indemnify by a majority of
disinterested directors (as defined in the agreements) or by independent counsel
(also as defined in the agreements).
The Underwriting Agreements between the registrant and the representatives
of the underwriters in the Registrant's initial public offering and in the
Registrant's subsequent public offering provides that the underwriters are
obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Act"). Reference
is made to the form of Underwriting Agreement filed as Exhibit 1 to the
Registrants's Registration Statement on Form S-1 (File No. 333-12407) and to the
form of Underwriting Agreement filed as Exhibit 1 to the Registrant's
Registration Statement on Form S-1 (File No 333-30005) .
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
The following exhibits are filed as part of this Registration Statement.
Where so indicated by footnote, exhibits which were previously filed are
incorporated by reference . For exhibits incorporated by reference, the
location of the exhibit in the previous filing is indicated in parentheses.
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included in its opinion
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
99.1 ViroPharma Incorporated 1995 Stock Option Plan (1) (Exhibit 10.1)
_____________________
(1) Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-12407).
II-3
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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; 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) do not
-------- -------
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with the Securities
and Exchange 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 that remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purpose 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
Exchange Act that is incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 AND POWER OF ATTORNEY
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 Malvern, Pennsylvania, on August 21, 1997.
VIROPHARMA INCORPORATED
By: /s/ Claude H. Nash
_____________________________________
Claude H. Nash, Ph.D.
President and Chief Executive Officer
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.
EACH PERSON IN SO SIGNING ALSO MAKES, CONSTITUTES AND APPOINTS CLAUDE H.
NASH AND VINCENT J. MILANO, AND EACH OF THEM ACTING ALONE, HIS OR HER TRUE AND
LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO EXECUTE AND CAUSE
TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, ANY AND ALL AMENDMENTS
AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, WITH EXHIBITS
THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, AND HEREBY RATIFIES AND
CONFIRMS ALL THAT SAID ATTORNEY-IN-FACT OR HIS OR HER SUBSTITUTE OR SUBSTITUTES
MAY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
Signature Capacity Date
--------- -------- ----
/s/ Claude H. Nash
- ------------------------- President, Chief Executive August 21, 1997
Claude H. Nash, Ph.D. Officer and Chairman of the
Board (Principal Executive
Officer)
/s/ Vincent J. Milano
- ------------------------- Vice President, Finance and August 21, 1997
Vincent J. Milano Administration (Principal
Financial and Accounting
Officer)
/s/ Frank Baldino, Jr., Ph.D.
- ----------------------------- Director August 21, 1997
Frank Baldino, Jr., Ph.D.
/s/ Steve Dow
- ------------------------- Director August 21, 1997
Steve Dow
/s/ Jon N. Gilbert
- ------------------------- Director August 21, 1997
Jon N. Gilbert
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- ------------------------- Director August 21, 1997
Ann H. Lamont
/s/ Christopher Moller, Ph.D.
- ----------------------------- Director August 21, 1997
Christopher Moller, Ph.D.
/s/ Robert J. Glaser
- ------------------------- Director August 21, 1997
Robert J. Glaser
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VIROPHARMA INCORPORATED
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
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Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Morgan, Lewis & Bockius LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included in its opinion
filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
99.1 ViroPharma Incorporated 1995 Stock Option Plan (1) (Exhibit 10.1)
- ------------------------------
(1) Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-12407).
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EXHIBIT 5.1
[LETTERHEAD OF MORGAN, LEWIS & BOCKIUS LLP]
August 21, 1997
ViroPharma Incorporated
76 Great Valley Parkway
Malvern, Pennsylvania 19355
Re: ViroPharma Incorporated - Registration Statement on Form S-8
Relating to the ViroPharma Incorporated 1995 Stock Option Plan
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to ViroPharma Incorporated, a Delaware corporation (the
"Company"), in connection with the preparation of the subject Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to 1,199,745 shares of the Company's
common stock, par value $0.002 per share (the "Common Stock"), issuable under
the ViroPharma Incorporated 1995 Stock Option Plan (the "Plan").
In rendering the opinion set forth below, we have examined the Registration
Statement and the exhibits thereto, including the Plan, certain records of the
Company's corporate proceedings as reflected in its minute books and such
statutes, records and other documents as we have deemed relevant. In our
examination, we have assumed the genuineness of documents submitted to us as
originals and the conformity with the originals of all documents submitted to us
as copies thereof.
Based on the foregoing, it is our opinion that the shares of Common Stock
issuable under the Plan will be, when issued in accordance with the terms of the
Plan, validly issued, fully paid and nonassessable.
The opinion set forth above is limited to the General Corporation Law of the
State of Delaware, as amended.
<PAGE>
ViroPharma Incorporated
August 21, 1997
Page 2
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving such consent, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act and the rules or regulations of the Commission thereunder.
The opinion expressed herein is solely for your benefit and may be relied upon
only by you.
Very truly yours,
/s/ MORGAN, LEWIS & BOCKIUS LLP
<PAGE>
EXHIBIT 23.1
Independent Auditors' Consent.
To the Board of Directors and Stockholders of ViroPharma Incorporated:
We consent to the use of our reports incorporated by reference and to the
reference to our firm under the heading "Experts" in the Registration Statement.
KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
August 21, 1997
