-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KJ3ek0mT6Jfg6vpFCJeNnStAMGDE6b5y7VAsvAP3TrbjKSXok9HGCxok7qyrFai3 MOawxUgbzZTUTmkxUtohTw== 0000950131-99-005428.txt : 19990924 0000950131-99-005428.hdr.sgml : 19990924 ACCESSION NUMBER: 0000950131-99-005428 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990923 EFFECTIVENESS DATE: 19990923 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PATHOGENESIS CORP CENTRAL INDEX KEY: 0001001186 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 911542150 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-87615 FILM NUMBER: 99715451 BUSINESS ADDRESS: STREET 1: 201 ELLIOT AVE W CITY: SEATTLE STATE: WA ZIP: 98119 BUSINESS PHONE: 2064678100 MAIL ADDRESS: STREET 1: 201 ELLIOT AVE WEST CITY: SEATTLE STATE: WA ZIP: 98119 S-8 1 FORM S-8 REGISTRATION STATEMENT Registration No. 333-______ As filed with the Securities and Exchange Commission on September 22, 1999 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ________________________________ FORM S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 ________________________________ PathoGenesis Corporation (Exact Name of Registrant as Specified in Its Charter) DELAWARE 91-1542150 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 201 Elliott Avenue West Seattle, Washington 98119 (Address of Principal Executive Offices) PathoGenesis Corporation 1999 Stock Plan (Full Title of the Plan) Cameron S. Avery Copies to: General Counsel Woon-Wah Siu PathoGenesis Corporation Bell, Boyd & Lloyd 5215 Old Orchard Road, Suite 900 Three First National Plaza Skokie, Illinois 60077 Chicago, Illinois 60602 (847) 583-8050 (312) 372-1121 (Name, Address and Telephone Number of Agents for Service) ________________________________ CALCULATION OF REGISTRATION FEE
================================================================================================================= Proposed Proposed Amount Maximum Maximum Amount of Title of Each Class of to be Offering Price Aggregate Registration Securities to be Registered Registered(1) Per Share Offering Price Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 per share 510,000 Shares $13.88(2) $7,076,250(2) $1,967(2) - ----------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 per share 290,000 Shares $15.56(3) $4,513,125(3) $1,255(3) =================================================================================================================
(1) Includes 800,000 Preferred Stock Purchase Rights evidenced by certificates of shares of common stock that automatically trade with such common stock. Also includes an indeterminate number of additional shares, and the associated Preferred Stock Purchase Rights, that may become issuable under the antidilution and other adjustment provisions of the PathoGenesis Corporation 1999 Stock Plan pursuant to Rule 416(a) of the Securities Act of 1933, as amended. (2) Based on the weighted average exercise price of currently outstanding options under the 1999 Stock Plan. (3) In accordance with Rule 457(h), calculated on the basis of the average of the high and low sale prices of the Registrant's common stock as quoted in the consolidated reporting system of the Nasdaq National Market on September 20, 1999, as reported by The Wall Street Journal (Midwest Edition). ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information. Not required to be included herewith. Item 2. Registrant Information and Employee Plan Annual Information. Not required to be included herewith. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. We, PathoGenesis Corporation, are filing this registration statement on Form S-8 to register shares of our common stock, par value $.001 per share. We incorporate by reference the following documents in this registration statement: (a) Our annual report on Form 10-K for the fiscal year ended December 31, 1998 (File No. 0-27150); (b) Our quarterly reports on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999 (File No. 0-27150); (c) The description of our common stock set forth under the caption "Description of Capital Stock - Common Stock" in our prospectus constituting a part of the registration statement on Form S-1 (Reg. No. 333-22297), filed on February 25, 1997; and (d) The description of our Preferred Stock Purchase Rights in the registration statement on Form 8-A filed on July 10, 1997, for the registration of those Rights under Section 12(g) of the Securities Exchange Act of 1934, as amended by amendment filed on April 15, 1999 (File No. 0- 27150). Incorporation by reference means that we are making the documents listed above a part of this registration statement by referring to them and declaring that you should consider them to be part of this registration statement as if they were fully copied in this registration statement. We also incorporate by reference all documents we subsequently file under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, before we file a post- effective amendment to indicate that all shares of common stock offer by this registration statement have been sold or to deregister all the shares then remaining unsold. For purposes of this registration statement, you should consider any statement contained in a document incorporated by reference in this registration statement to be modified or superseded to the extent that a statement contained in this registration statement or in any other subsequently filed document which also is incorporated by reference in this registration statement modifies or replaces such statement. You should not consider any statement so modified or superseded, except as so modified or superseded, to be a part of this registration statement. Item 4. Description of Securities. Not applicable. 1 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 authorizes a Delaware corporation to indemnify any director or officer against expenses, judgments, fines and settlements actually and reasonably incurred by such person in connection with any action, suit or proceeding, if such director or officer acted in good faith and in a manner such person 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, except that no indemnification shall be made in connection with any action by or in the right of the corporation if such person is adjudged to be liable to the corporation, unless the court determines that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such expense that the court shall deem proper. Said section further provides that to the extent that any such person is successful on the merits or otherwise in defense of any action such director or officer shall be indemnified against expenses actually and reasonably incurred by him or her. In addition, a Delaware corporation is authorized to purchase insurance on behalf of its directors and officers against liabilities whether or not in the circumstances the corporation would have the power to indemnify against such liabilities under said section. The Company's Amended and Restated Certificate of Incorporation provides for indemnification of the Company's directors, officers, employees and agents, to the fullest extent permitted by the Delaware General Corporation Law, against all expense, liability and loss reasonably incurred or suffered by each such person in connection with any action, suit, or proceeding to which such person was or is made a party or is threatened to be a party by reason of the fact that such person is a director, officer, employee or agent of the Company; provided, however, except as provided in the Amended and Restated Certificate of Incorporation with respect to proceedings to enforce rights to indemnification, the Company shall indemnify any such person in connection with a proceeding initiated by such person if the proceeding was authorized by the board of directors of the Company. The Company has obtained directors and officers insurance covering its directors and executive officers. The Company's Amended and Restated Certificate of Incorporation eliminates, to the fullest extent permitted by Delaware law, liability of a director to the Company or its stockholders for monetary damages for breach of the director's fiduciary duty of care except for liability where the director (a) breaches his or her duty of loyalty to the Company or its shareholders, (b) fails to act in good faith or engages in intentional misconduct or knowing violation of law, (c) authorized a payment of an illegal dividend or stock repurchase, or (d) obtains an improper personal benefit. While liability for monetary damages has been eliminated, equitable remedies such as injunctive relief or rescission remain available. In addition, a director is not relieved of his or her responsibilities under any other law, including the federal securities laws. Insofar as indemnification by the Company for liabilities arising under the Securities Act, may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing, the Company 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. Item 7. Exemption From Registration Claimed. Not applicable. 2 Item 8. Exhibits. We incorporate by reference the Exhibit Index which appears at the end of this registration statement. That Index lists the exhibits to this registration statement. Item 9. Undertakings. (a) The Company 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 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 this 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 a 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 this registration statement or any material change to such information in this 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 by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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)-(g) Not applicable. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the 3 Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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. (i)-(j) Not applicable. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 Skokie, State of Illinois, on September 22, 1999. PATHOGENESIS CORPORATION By /s/ Alan R. Meyer -------------------------------------- Alan R. Meyer Executive Vice President 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. /s/ Alan R. Meyer Executive Vice President, Chief September 22, 1999 - -------------------- Alan R. Meyer Financial Officer and Director (Principal Financial and Accounting Officer) Wilbur H. Gantz Chairman, Chief Executive ) Officer, President and ) Director (Principal ) Executive Officer) ) ) John Gordon Director ) ) ) Elizabeth M. Greetham Director ) By: /s/ Alan R. Meyer ) ------------------- ) Alan R. Meyer ) Attorney-in-Fact Michael J. Montgomery Director ) September 22, 1999 ) ) Arthur W. Nienhuis Director ) ) ) Talat M. Othman Director ) ) ) Eugene L. Step Director ) ) ) James R. Tobin Director ) ) ) Fred Wilpon Director ) 5 (Being the principal executive officer, the principal financial and accounting officer and a majority of the directors of PathoGenesis Corporation.) ORIGINAL POWER OF ATTORNEY AUTHORIZING WILBUR H. GANTZ AND ALAN R. MEYER TO EXECUTE THIS REGISTRATION STATEMENT FOR EACH OF MS. GREETHAM AND MESSRS. GANTZ, GORDON, MEYER, MONTGOMERY, NIENHUIS, OTHMAN, STEP, TOBIN AND WILPON HAS BEEN EXECUTED AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. 6 Exhibit Index The following are filed as part of this registration statement. Exhibit Number Description of Document - -------------- ----------------------- 4.1 Composite Certificate of Incorporation of PathoGenesis Corporation, as amended (incorporated reference to Exhibit 3.1(d) of quarterly report on Form 10-Q for the three months ended March 31, 1998, File No. 0-27150). 4.1(a) Amended and Restated Certificate of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to registration statement on Form S-1, Registration No. 333- 22297). 4.1(b) Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 4.1(b) to registration statement on Form S-8, Registration No. 333-45571). 4.2 By-laws of the Company, as amended through June 3, 1999 (incorporated by reference to Exhibit 3.2 to quarterly report on Form 10-Q for the three months ended June 30, 1999, File No. 0-27150). 4.3 Certificate of Designations (incorporated by reference to Exhibit 4.1(b) to registration statement on Form S-8, Registration No. 333-45571). 4.4 PathoGenesis Corporation PathoGenesis Corporation 1999 Stock Plan (incorporated by reference to Appendix A to PathoGenesis' notice and proxy statement dated April 19, 1999, File No. 0-27150). 4.4(a) Form of Stock Option Agreement for 1999 Stock Plan (incorporated by reference to Exhibit 4.10 to quarterly report on Form 10-Q for the three months ended June 30, 1999, File No. 0-27150). 4.5 Rights Agreement, dated as of June 25, 1997, between PathoGenesis Corporation and Harris Trust and Savings Bank as Rights Agent, including the form of Right Certificate as Exhibit B (incorporated by reference to Exhibit 1 to current report on Form 8-K filed on July 10, 1997, File No. 0-27150). 4.5(a) First Amendment, dated as of March 8, 1998, to Rights Agreement between PathoGenesis Corporation and Harris Trust and Savings Bank, as Rights Agent (incorporated by reference to Exhibit 4.1(bb) to annual report on Form 10-K for 1997, File No. 0-27150). 4.5(b) Amendment of Rights Plan, dated as of April 13, 1999, between PathoGenesis Corporation and Harris Trust and Savings Bank as Rights Agent (incorporated by reference to Exhibit 4.1(bbb) to amendment to registration statement on Form 8-A/A, filed on April 15, 1999, File No. 0-27150). 5 Opinion of Bell, Boyd & Lloyd. 23.1 Consent of KPMG LLP. 23.2 Consent of Bell, Boyd & Lloyd (included in Exhibit 5). 24 Power of Attorney EX-5 2 OPINION OF BELL, BOYD & LLOYD EXHIBIT 5 BELL, BOYD & LLOYD Three First National Plaza 70 West Madison Street, Suite 3300 Chicago, Illinois 60602-4207 312-372-1121 Fax: 312-372-2098 September 21, 1999 PathoGenesis Corporation 201 Elliott Avenue West Seattle, Washington, 98119 PathoGenesis Corporation 1999 Stock Plan Registration Statement on Form S-8 ---------------------------------------------- Ladies and Gentlemen: We have acted as counsel to PathoGenesis Corporation, a Delaware corporation (the "Company"), in connection with the preparation, execution and filing of the registration statement on Form S-8 of the Company (the "Registration Statement"), which covers 800,000 shares of common stock, par value $.001 per share, of the Company (the "Shares"), offered under the Company's 1999 Stock Plan (the "Plan"). We have examined originals, or copies certified or otherwise identified to our satisfaction, of the Plan and such other documents, corporate and other records, certificates and other papers as we deemed it necessary to examine for the purposes of this opinion. Based upon the foregoing, we are of the opinion that: 1. The Company is a corporation duly organized and legally existing under the law of the State of Delaware. 2. The Company has taken all action necessary to authorize (i) the Plan, (ii) the offer for sale of the Shares pursuant to the Plan, and (iii) the issuance of the shares of its common stock, $.001 par value, in accordance with the Plan. 3. The Shares when issued in accordance with the Plan will, upon such issuance, constitute legally issued, fully paid and nonassessable shares of common stock, $.001 par value, of the Company. PathoGenesis Corporation September 21, 1999 Page 2 We hereby consent to the filing of this Opinion Letter as an exhibit to the Registration Statement for the registration of the Shares under the Securities Act of 1933. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933. Very truly yours, BELL, BOYD & LLOYD EX-23.1 3 CONSENT OF KPMG LLP EXHIBIT 23.1 ------------ Consent of Independent Certified Public Accountants --------------------------------------------------- The Board of Directors PathoGenesis Corporation We consent to the use of our report in this registration statement on Form S-8 of our report dated January 25, 1999, except as to note 11, which is as of March 29, 1999, relating to the consolidated balance sheets of PathoGenesis Corporation and subsidiary as of December 31, 1998 and 1997, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1998, which report appears in the December 31, 1998, annual report on Form 10-K of PathoGenesis Corporation, incorporated herein by reference. KPMG LLP Seattle, Washington September 22, 1999 EX-24 4 POWER OF ATTORNEY EXHIBIT 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Wilbur H. Gantz and Alan R. Meyer, or any one of them, his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/her name, place, and stead, in any and all capacities, to sign any and all pre- or post-effective amendments to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or their, his/her substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Wilbur H. Gantz Chairman, Chief Executive Officer, August 26, 1999 - --------------------------- Wilbur H. Gantz President and Director (Principal Executive Officer) /s/ Alan R. Meyer Executive Vice President, Chief August 26, 1999 - --------------------------- Alan R. Meyer Financial Officer and Director (Principal Financial and Accounting Officer) /s/ John Gordon Director August 26, 1999 - --------------------------- John Gordon /s/ Elizabeth M. Greetham Director August 26, 1999 - --------------------------- Elizabeth M. Greetham /s/ Michael J. Montgomery Director August 26, 1999 - --------------------------- Michael J. Montgomery /s/ Arthur W. Nienhuis Director September 6, 1999 - --------------------------- Arthur W. Nienhuis /s/ Talat M. Othman Director August 26, 1999 - --------------------------- Talat M. Othman /s/ Eugene L. Step Director August 26, 1999 - --------------------------- Eugene L. Step /s/ James R. Tobin Director August 26, 1999 - --------------------------- James R. Tobin /s/ Fred Wilpon Director September 2, 1999 - --------------------------- Fred Wilpon
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