0000950129-01-503698.txt : 20011101 0000950129-01-503698.hdr.sgml : 20011101 ACCESSION NUMBER: 0000950129-01-503698 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20011030 EFFECTIVENESS DATE: 20011030 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TEXAS BIOTECHNOLOGY CORP /DE/ CENTRAL INDEX KEY: 0000887023 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 133532643 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-72468 FILM NUMBER: 1770107 BUSINESS ADDRESS: STREET 1: 7000 FANNIN STREET 2: 20TH FLR CITY: HOUSTON STATE: TX ZIP: 77030 BUSINESS PHONE: 7137968822 S-8 1 h91596s-8.txt TEXAS BIOTECHNOLOGY CORPORATION - 1999 STOCK INCEN As filed with the Securities and Exchange Commission on October 30, 2001. Registration No. 333-__________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- TEXAS BIOTECHNOLOGY CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 13-3532643 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.)
7000 FANNIN STREET, 20TH FLOOR HOUSTON, TEXAS 77030 (Address, including Zip Code, of Registrant's Principal Executive Offices) ----------------------- TEXAS BIOTECHNOLOGY CORPORATION 1999 STOCK INCENTIVE PLAN (Full Title of Plan) ----------------------- Name, Address, Telephone and Copy of Communications to: Number of Agent for Service: DAVID B. McWILLIAMS ROBERT G. REEDY TEXAS BIOTECHNOLOGY CORPORATION PORTER & HEDGES, L.L.P. 7000 FANNIN STREET, 20TH FLOOR 700 LOUISIANA, 35TH FLOOR HOUSTON, TEXAS 77030 HOUSTON, TEXAS 77002-2370 (713) 796-8822 (713) 226-0600 ----------------------- CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED AMOUNT TO OFFERING MAXIMUM AGGREGATE AMOUNT OF TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(2) ------------------------------------ ----------------- ------------------- ------------------ ------------------- Common Stock, par value $.005 per share 2,000,000 shs. $5.365 $10,730,000 $2,682.50
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate number of shares of Common Stock issuable as a result of the anti-dilution provisions of the Plan. (2) Pursuant to Rule 457(c), the registration fee is calculated on the basis of the average of the high and low prices for the Common Stock on the Nasdaq National Market on October 23, 2001, which was $5.365. Pursuant to General Instruction E to the Form S-8, the registration fee is calculated with respect to the additional securities registered under the Plan. ================================================================================ This registration statement registers an additional 2,000,000 shares of Common Stock related to the Texas Biotechnology Corporation 1999 Stock Incentive Plan, as amended, which are the same class as other securities for which a registration statement on Form S-8, No. 333-79477 (the "Previous Registration Statement") has been previously filed. The Previous Registration Statement registered 1,000,000 shares of Common Stock related to the Plan. Pursuant to General Instruction E of Form S-8, the contents of the Previous Registration Statement are hereby incorporated by reference. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 8. EXHIBITS Exhibit No. Description ------- ----------- 4.1 Amendment to the 1999 Stock Incentive Plan (filed herewith). 5.1 Opinion of Porter & Hedges, L.L.P., with respect to the legality of the securities (filed herewith). 23.1 Consent of KPMG LLP (filed herewith). 23.2 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1 Opinion) 24.1 Power of Attorney (included on signature page) 2 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 Houston, State of Texas on October 30, 2001. TEXAS BIOTECHNOLOGY CORPORATION By: /s/ David B. McWilliams ------------------------------------ David B. McWilliams President and Chief Executive Officer POWER OF ATTORNEY Each of the undersigned hereby appoints David B. McWilliams and Stephen L. Mueller and each of them (with full power to act alone), as attorney and agents for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act of 1933 any and all amendments and exhibits to this registration statement and any and all applications, instruments and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do and perform any and all acts and things whatsoever requisite or desirable. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the 30th day of October, 2001.
SIGNATURE TITLE --------- ----- /s/ John M. Pietruski Chairman of the Board of Directors --------------------------------------------------------- John M. Pietruski /s/ David B. McWilliams Director, President and Chief Executive Officer --------------------------------------------------------- (Principal Executive Officer) David B. McWilliams /s/ Richard A.F. Dixon, Ph.D. Director, Senior Vice President, Research and Chief --------------------------------------------------------- Scientific Officer Richard A.F. Dixon, Ph.D. /s/ Stephen L. Mueller Vice President, Finance and Administration, --------------------------------------------------------- Treasurer and Secretary Stephen L. Mueller (Principal Financial and Accounting Officer) /s/ Ron J. Anderson, M.D. Director --------------------------------------------------------- Ron J. Anderson, M.D.
3
SIGNATURE TITLE --------- ----- /s/ Frank C. Carlucci Director --------------------------------------------------------- Frank C. Carlucci /s/ Robert J. Cruikshank Director --------------------------------------------------------- Robert J. Cruikshank /s/ Suzanne Oparil, M.D. Director --------------------------------------------------------- Suzanne Oparil, M.D. /s/ James A. Thomson, Ph.D. Director --------------------------------------------------------- James A. Thomson, Ph.D. /s/ James T. Willerson, M.D. Director --------------------------------------------------------- James T. Willerson, M.D.
4 INDEX TO EXHIBITS
Exhibit No. Description ------- ----------- 4.1 Amendment to the 1999 Stock Incentive Plan (filed herewith). 5.1 Opinion of Porter & Hedges, L.L.P., with respect to the legality of the securities (filed herewith). 23.1 Consent of KPMG LLP (filed herewith). 23.2 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1 Opinion) 24.1 Power of Attorney (included on signature page)
5 EX-4.1 3 h91596ex4-1.txt AMENDMENT TO 1999 STOCK INCENTIVE PLAN EXHIBIT 4.1 1999 STOCK INCENTIVE PLAN The 1999 Stock Incentive Plan (the "1999 Plan") of Texas Biotechnology Corporation (the "Company") is hereby amended as follows effective March 13, 2001. 1. The first paragraph of Section 1.4 is amended to read as follows in its entirety: Subject to adjustment under Section 5.5, there shall be available for Incentive Awards under the Plan that are granted wholly or partly in Common Stock (including rights or Stock Options that may be exercised for or settled in Common Stock) Three Million (3,000,000) Shares of Common Stock. Three Million (3,000,000) of the Shares reserved under the Plan shall be available for grants of Incentive Stock Options. The number of Shares of Common Stock that are the subject of Incentive Awards under this Plan, that are forfeited or terminated, expire unexercised, are settled in cash in lieu of Common Stock or in a manner such that all or some of the Shares covered by an Incentive Award are not issued to a Grantee or are exchanged for Incentive Awards that do not involve Common Stock, shall again immediately become available for Incentive Awards hereunder. The Committee may from time to time adopt and observe such procedures concerning the counting of Shares against the Plan maximum as it may deem appropriate. The Board and the appropriate officers of the Company shall from time to time take whatever actions are necessary to file any required documents with governmental authorities, stock exchanges and transaction reporting systems to ensure that Shares are available for issuance pursuant to Incentive Awards. During such period that the Company is a Publicly Held Corporation, then unless and until the Committee determines that a particular Incentive Award granted to a Covered Employee is not intended to comply with the Performance-Based Exception, the following rules shall apply to grants of Incentive Awards to Covered Employees: (a) Subject to adjustment as provided in Section 5.5, the maximum aggregate number of Shares of Common Stock (including Stock Options, Restricted Stock, or Other Stock-Based Awards paid out in Shares) that may be granted or that may vest, as applicable, in any calendar year pursuant to any Incentive Award held by any individual Covered Employee shall be 3,000,000 Shares. (b) The maximum aggregate cash payout (including Other Stock-Based Awards paid out in cash) with respect to Incentive Awards granted in any calendar year which may be made to any Covered Employee shall be Ten Million dollars ($10,000,000). (c) With respect to any Stock Option granted to a Covered Employee that is canceled or repriced, the number of Shares subject to such Stock Option shall continue to count against the maximum number of Shares that may be the subject of Stock Options granted to such Covered Employee hereunder and, in this regard, such maximum number shall be determined in accordance with Section 162(m) of the Code. (d) The limitations of subsections (a), (b) and (c) above shall be construed and administered so as to comply with the Performance-Based Exception. EX-5.1 4 h91596ex5-1.txt OPINION OF PORTER & HEDGES, L.L.P. EXHIBIT 5.1 [PORTER & HEDGES LETTERHEAD] October 29, 2001 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 Re: TEXAS BIOTECHNOLOGY CORPORATION REGISTRATION STATEMENT ON FORM S-8; 1999 STOCK INCENTIVE PLAN, AS AMENDED Ladies and Gentlemen: We have acted as counsel to Texas Biotechnology Corporation, a Delaware corporation ("Company"), in connection with the preparation for filing with the Securities and Exchange Commission of a registration statement on Form S-8 ("Registration Statement") under the Securities Act of 1933, as amended. The Registration Statement relates to the registration of an additional 2,000,000 shares ("Shares") of the Company's common stock, par value $.005 per share ("Common Stock"), issuable pursuant to the Company's 1999 Stock Incentive Plan, as amended (the "Plan"). We have examined the Plan and such corporate records, documents, instruments and certificates of the Company, and have reviewed such questions of law, as we have deemed necessary, relevant or appropriate to enable us to render the opinion expressed herein. In such examination, we have assumed without independent investigation the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons, and the conformity of any documents submitted to us as copies to their respective originals. As to certain questions of fact material to this opinion, we have relied without independent investigation upon statements or certificates of public officials and officers of the Company. Based upon such examination and review, we are of the opinion that the Shares have been duly and validly authorized and will, upon issuance and delivery as contemplated by the Plan, be validly issued, fully paid and nonassessable outstanding shares of Common Stock. This Firm consents to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ PORTER & HEDGES, L.L.P. PORTER & HEDGES, L.L.P. EX-23.1 5 h91596ex23-1.txt CONSENT OF KPMG LLP EXHIBIT 23.1 CONSENT OF KPMG LLP The Board of Directors Texas Biotechnology Corporation: We consent to incorporation by reference in the registration statement on Form S-8 to be filed on or about October 29, 2001 of Texas Biotechnology Corporation of our report dated February 26, 2001, relating to the consolidated balance sheets of Texas Biotechnology Corporation and subsidiary as of December 31, 2000 and 1999, and the related consolidated statements of operations and comprehensive loss, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 2000, which report appears in the December 31, 2000 annual report on Form 10-K of Texas Biotechnology Corporation. /s/ KPMG LLP KPMG LLP Houston, Texas October 29, 2001