<PAGE>
As filed with the Securities and Exchange Commission on May 31, 2000
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
VIROPHARMA INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 23-2789550
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
ViroPharma Incorporated
405 Eagleview Boulevard
Exton, Pennsylvania 19341
(Address of Principal Executive Offices)
_______________________________
ViroPharma Incorporated 2000 Employee Stock Purchase Plan
(Full title of the Plan)
_______________________________
CLAUDE H. NASH
President and Chief Executive Officer
ViroPharma Incorporated
405 Eagleview Boulevard
Exton, Pennsylvania 19341
(Name and Address of Agent for Service)
(610) 458-7300
(Telephone number, including area code of agent for service)
Copies of Communications to:
Jeffrey P. Libson, Esquire Thomas F. Doyle, Esquire
Pepper Hamilton LLP ViroPharma Incorporated
1235 Westlakes Drive, Suite 400 405 Eagleview Boulevard
Berwyn, Pennsylvania 19312-2401 Exton, Pennsylvania 19341
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Proposed
Title of Securities Maximum Proposed Maximum Amount of
to Amount to Be Offering Price Aggregate Offering Registration Fee
Be Registered Registered (1) Per Share (2) Price(2) (2)
============================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par
value $0.002 per 300,000 $11.1875 $3,356,250 $886
share
============================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) 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,
recapitalization or certain other capital adjustments.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low sale prices of the Registrant's Common
Stock reported on the NASDAQ National Market on May 26, 2000.
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4
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents to
be given to the recipient of the securities registered hereby in accordance with
Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Securities and Exchange Commission allows us to incorporate by
reference information into this prospectus, which means that we can disclose
important information to you by referring you to another document filed
separately with the Securities and Exchange Commission. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in this prospectus. This prospectus
incorporates by reference the documents set forth below that we have previously
filed with the Securities and Exchange Commission. These documents contain
important information about us, our business and our finances.
The documents that we are incorporating by reference are:
1. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000;
2. Our Annual Report on Form 10-K for the year ended December 31, 1999;
3. Our Current Reports on Form 8-K filed on February 16, 2000, February
25, 2000, April 11, 2000 and May 26, 2000;
4. The description of our common stock contained in the Registration
Statement on Form 8-A filed with the Securities and Exchange
Commission on November 8, 1996; and
5. The description of rights to purchase preferred shares contained in
the Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on September 21, 1998.
Any documents which we file pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus but before the end of any
offering of securities made under this prospectus will also be considered to be
incorporated by reference.
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5
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 145 of the Delaware General Corporation Law ("Section 145") permits
a corporation to 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 is or was a director, officer or agent of the corporation or
another enterprise if serving at the request of the corporation. Depending on
the character of the proceeding, a corporation may indemnify against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person indemnified acted in good faith and, in respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. In the case of an action by or in the right of the corporation, no
indemnification may be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that, despite the adjudication
of liability, such person is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper. Section 145 further provides
that to the extent a director, officer, employee or agent of a corporation has
been successful in the defense of any action, suit or proceeding referred to
above, or in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
The Certificate of Incorporation of ViroPharma limits the personal
liability of directors to ViroPharma or any of its stockholders for monetary
damages for breach of fiduciary duty as a director, provided, however, that this
limitation does not apply to any liability of a director (i) for any breach of
the director's duty of loyalty to ViroPharma or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of Title 8 of the General
Corporation Law of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit.
We have entered into indemnification agreements with each of our directors
and executive officers. In addition, section 6.4 of ViroPharma's By-laws
provides for the indemnification, to the full extent authorized by law, of any
person made, or threatened to be made, a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that such person, his testator or intestate, is or was a director, officer or
employee of ViroPharma or any predecessor of ViroPharma, or serves or served any
other enterprise as a director, officer or employee at the request of ViroPharma
or any predecessor of ViroPharma.
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6
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The exhibit list is amended to read in its entirety as follows:
Exhibit Number Description
-------------- -----------
5 Opinion of Pepper Hamilton LLP
23.1 Consent of KPMG LLP
23.2 Consent of Pepper Hamilton LLP (included in its opinion
filed as Exhibit 5 hereto)
24 Power of Attorney (included on the Signature Page of this
Registration Statement)
99 ViroPharma Incorporated 2000 Employee Stock Purchase Plan (1)
______________________
(1) Filed as Annex C to the Registrant's proxy statement filed on April 13,
2000 (File No. 0-21699)
Item 9. Undertakings
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;
(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.
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7
Provided, however, that paragraph (1)(i) and 1(ii) above 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 Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
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.
The undersigned Registrant hereby undertakes that, for purposes 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
Securities Exchange Act of 1934 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.
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 of 1933 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 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 of 1933 and will be governed by the final adjudication of such issue.
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8
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 Exton, Pennsylvania on May 31, 2000.
VIROPHARMA INCORPORATED
By: /s/ Claude H. Nash
-------------------
Claude H. Nash, 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 and agent 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 attorneys-in-fact or his or her substitute
or substitutes, may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
------------------------------- -------------------------------------------------- -----------------
<S> <C> <C>
/s/ Claude H. Nash President, Chief Executive Officer and Chairman May 31, 2000
------------------ of the Board of Directors (Principal Executive
Claude H. Nash, Ph.D. Officer)
/s/ Vincent J. Milano Vice President, Chief Financial Officer and May 31, 2000
--------------------- Treasurer (Principal Financial and Accounting
Vincent J. Milano Officer)
/s/ Frank Baldino Director May 31, 2000
-----------------
Frank Baldino, Jr., Ph.D.
/s/ Robert J. Glaser Director May 31, 2000
--------------------
Robert J. Glaser
/s/ Ann H. Lamont Director May 31, 2000
-----------------
Ann H. Lamont
/s/ Howard Pien Director May 31, 2000
---------------
</TABLE>
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9
<TABLE>
<S> <C> <C>
Howard Pier
/s/ Michel de Rosen Director May 31, 2000
-------------------
Michel de Rosen
/s/ David J. Williams Director May 31, 2000
---------------------
David J. Williams
</TABLE>
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10
EXHIBIT INDEX
Exhibit Numbers Description
--------------- -----------
5 Opinion of Pepper Hamilton LLP
23.1 Consent of KPMG LLP
23.2 Consent of Pepper Hamilton LLP (included in its opinion filed
as Exhibit 5)
24 Power of Attorney (included on signature page of this
Registration Statement)
99 ViroPharma Incorporated 2000 Employee Stock Purchase Plan (1)
______________________
(1) Filed as Annex C to the Registrant's proxy statement filed on April 13,
2000 (File No. 0-21699)
