AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 21, 1999
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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CYPROS PHARMACEUTICAL CORPORATION
(Exact name of Registrant as specified in its charter)
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California 33-0476164
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2714 Loker Avenue West 92008
Carlsbad, California (Zip code)
(Address of principal executive offices)
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1992 STOCK OPTION PLAN
1993 NON-EMPLOYEE DIRECTORS' EQUITY INCENTIVE PLAN
(Full title of the plans)
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David W. Nassif
Senior Vice President, Chief Financial Officer
and Secretary
CYPROS PHARMACEUTICAL CORPORATION
2714 Loker Avenue West
Carlsbad, California 92008
(Name and address of agent for service)
(760) 929-9500
(Telephone number, including area code, of agent for service)
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Copies to:
M. Wainwright Fishburn, Jr., Esq.
Blake T. Bilstad, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, California 92121
(619) 550-6000
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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Common Stock, no par value 600,000 shares(1) $2.3437 $1,406,220 $391
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(1) Represents the additional number of shares authorized for issuance
under the 1992 Stock Option Plan (500,000 shares) and the 1993
Non-Employee Directors' Equity Incentive Plan (100,000 shares).
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The price per share and
the aggregate offering price are calculated on the average of the high
and low sales prices of Registrant's Common Stock on June 18, 1999 as
reported on the American Stock Exchange.
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENTS ON FORM S-8
The contents of Registration Statements on Form S-8 Nos. 33-60194, 33-72622
and 33-91254 filed with the Securities and Exchange Commission on March 29,
1993, December 8, 1993 and April 17, 1995, respectively, are incorporated by
reference herein.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Restated Articles of Incorporation of the Registrant. (1)
4.2 Amendment to Restated Articles of Incorporation of the
Registrant. (2)
4.3 Bylaws of the Registrant. (1)
4.4 Certificate of Adoption of Bylaw Amendment of the
Registrant. (3)
4.5 Specimen stock certificate. (1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1 1992 Stock Option Plan, as amended on February 10, 1998. (3)
99.2 1993 Non-Employee Directors' Equity Incentive Plan, as
amended on February 16, 1999.
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(1) Filed as an exhibit to the Registrant's Registration Statement on
Form S-1 (No. 33-51682) on September 4, 1992, and incorporated herein by
reference.
(2) Filed as an exhibit to the Registrant's Form 10-Q for the period ended
January 31, 1995, and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year
ended July 31, 1998, and incorporated herein by reference.
2.
SIGNATURES
THE REGISTRANT. 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 Carlsbad, State of California, on June 18,
1999.
CYPROS PHARMACEUTICAL CORPORATION
By:/s/ Paul J. Marangos, Ph.D.
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Paul J. Marangos, Ph.D.
Chairman of the Board, President and Chief
Executive Officer
(PRINCIPAL EXECUTIVE OFFICER)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul J. Marangos and David W. Nassif, and
each of them, as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for the undersigned and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including 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 attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, 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, or any of them, or his or her substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
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/ Paul J. Marangos, Ph.D. Chairman of the Board, June 18, 1999
- ------------------------------- President and Chief Executive
Paul J. Marangos, Ph.D. Officer (PRINCIPAL EXECUTIVE
OFFICER)
/s/ David W. Nassif Senior Vice President, Chief June 18, 1999
- ------------------------------- Financial Officer and
David W. Nassif Secretary (PRINCIPAL
FINANCIAL AND ACCOUNTING
OFFICER
/s/ Robert F. Allnutt Director June 18, 1999
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Robert F. Allnutt
/s/ Digby W. Barrios Director June 18, 1999
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Digby W. Barrios
/s/ Virgil D. Thompson Director June 18, 1999
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Virgil D. Thompson
/s/ Robert A. Vukovich, Ph.D. Director June 18, 1999
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Robert A. Vukovich, Ph.D.
3.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Restated Articles of Incorporation of the Registrant.(1)
4.2 Amendment to Restated Articles of Incorporation of the
Registrant. (2)
4.3 Bylaws, as amended, of the Registrant.
4.4 Specimen stock certificate. (1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1 1992 Stock Option Plan, as amended on February 10, 1998. (3)
99.2 1993 Non-Employee Directors' Equity Incentive Plan, as
amended on February 16, 1999.
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(1) Filed as an exhibit to the Registrant's Registration Statement on
Form S-1 (No. 33-51682) on September 4, 1992 and incorporated herein by
reference.
(2) Filed as an exhibit to the Registrant's Form 10-Q for the period ended
January 31, 1995, and incorporated herein by reference.
(3) Filed as an exhibit to the Registrant's Form 10-K for the fiscal year
ended July 31, 1998, and incorporated herein by reference.
4.
[LETTERHEAD]
June 18, 1999
Cypros Pharmaceutical Corporation
2714 Loker Ave. West
Carlsbad, CA 92008
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Cypros Pharmaceutical Corporation (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of (i) up to 500,000
shares of the Company's Common Stock pursuant to its 1992 Stock Option Plan, as
amended (the "Option Plan") and (ii) up to 100,000 shares of the Company's
Common Stock pursuant to its 1993 Non-Employee Directors' Equity Incentive Plan,
as amended (the "Directors' Plan") (collectively referred to herein as the
"Shares").
In connection with this opinion, we have examined the Registration Statement,
the Option Plan, the Directors' Plan, your Restated Articles of Incorporation,
as amended, and Bylaws, as amended, and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Option Plan or the
Directors' Plan, as applicable, and the Registration Statement, will be validly
issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By:
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M. Wainwright Fishburn, Jr.
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1992 Stock Option Plan and the 1993 Non-Employee
Directors' Equity Incentive Plan of Cypros Pharmaceutical Corporation of our
report dated August 21, 1998, with respect to the financial statements of Cypros
Pharmaceutical Corporation included in its Annual Report (Form 10-K) for the
year ended July 31, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
June 17, 1999
CYPROS PHARMACEUTICAL CORPORATION
1993 NON-EMPLOYEE DIRECTORS' EQUITY INCENTIVE PLAN
Adopted by the Board of Directors on June 8, 1993
Amended by the Board of Directors January 10, 1994
Approved by the Shareholders January 18, 1994
Amended by the Board of Directors on November 14, 1997
Approved by the Board of Directors on October 29, 1998
Approved by the Shareholders February 16, 1999
1. PURPOSE.
(a) The purpose of the Amended and Restated 1993 Non-Employee
Directors' Equity Incentive Plan (the "Plan") is to provide a means by which
each director of Cypros Pharmaceutical Corporation, a California corporation
(the "Company"), who is not otherwise an employee of the Company or of any
Affiliate of the Company (each such person being hereafter referred to as a
"Non-Employee Director") will be given an opportunity to purchase stock of the
Company and will receive stock bonus awards.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended (the "Code").
(c) The Company, by means of the Plan, seeks to retain the services
of persons now serving as Non-Employee Directors of the Company, to secure and
retain the services of persons capable of serving in such capacity, and to
provide incentives for such persons to exert maximum efforts for the success of
the Company.
(d) The Company intends that the options issued under the Plan not
be incentive stock options as that term is used in Section 422 of the Code.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(c).
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To construe and interpret the Plan and options and stock
bonus awards granted under it, and to establish, amend and revoke rules and
regulations for its administration. The Board, in the exercise of this power,
may correct any defect, omission
1.
or inconsistency in the Plan or in any option agreement, in a manner and to the
extent it shall deem necessary or expedient to make the Plan fully effective.
(ii) To amend the Plan as provided in paragraph 11.
(iii) Generally, to exercise such powers and to perform such
acts as the Board deems necessary or expedient to promote the best interests of
the Company.
(c) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to options or issued
pursuant to stock bonus awards granted under the Plan shall not exceed in the
aggregate three hundred fifty thousand (350,000) shares of the Company's common
stock. If any option granted under the Plan shall for any reason expire or
otherwise terminate without having been exercised in full, the stock not
purchased under such option shall again become available for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY.
Options and stock bonus awards shall be granted only to Non-Employee
Directors of the Company.
5. NON-DISCRETIONARY GRANTS.
(a) Each person who is, on or after January 1, 1993, elected for the
first time to be a Non-Employee Director of the Company shall, upon the date of
his or her initial election to be a Non-Employee Director by the Board or
shareholders of the Company (or, if later, the date of amendment of the Plan by
the Board to include this provision), be automatically granted an option to
purchase twenty-five thousand (25,000) shares of common stock of the Company on
the terms and conditions set forth herein. Thereafter, so long as he or she is a
Non-Employee Director of the Company and the Plan remains in effect, each
Non-Employee Director shall, upon January 1 of each year beginning in 1997, be
automatically granted an option to purchase ten thousand (10,000) shares of
common
2.
stock of the Company on the terms and conditions set forth herein.
Notwithstanding the foregoing, no Non-Employee Director who owns, directly or
indirectly, shares representing ten percent (10%) or more of the total
outstanding shares of any class of stock of the Company shall be eligible for
the grant of an option pursuant to this Section 5.
(b) Each Non-Employee Director shall be granted shares of common
stock of the Company with a fair market value equal to two thousand dollars
($2,000) at each Board meeting he or she attends beginning on or after the 1999
Annual Shareholders' Meeting; provided, however, that no stock bonus award shall
be made prior to approval of the Plan by the shareholders, pursuant to paragraph
11. For purposes of these stock bonus awards, fair market value means the
ten-day average of the closing sales price for the common stock of the Company
as quoted on the American Stock Exchange on the ten (10) market trading days
immediately preceding the date of the Board meeting at which the stock bonus
award shall be granted, as reported in The Wall Street Journal or such other
source as the Board deems reliable. Stock bonus awards shall be one hundred
percent (100%) vested on the date of grant.
6. OPTION PROVISIONS.
Each option shall contain the following terms and conditions:
(a) No option shall be exercisable after the expiration of ten (10)
years from the date it was granted.
(b) The exercise price of each option shall be eighty-five percent
(85%) of the fair market value of the stock subject to such option on the date
such option is granted.
(c) The purchase price of stock acquired pursuant to an option shall be
paid, to the extent permitted by applicable statutes and regulations, either (1)
in cash at the time the option is exercised, or (2) by delivery to the Company
of shares of common stock of the Company that have been held for the requisite
period necessary to avoid a charge to the Company's reported earnings and valued
at the fair market value on the date of exercise, or (3) by a combination of
such methods of payment.
(d) Except as otherwise expressly provided in an optionholder's option
agreement, an option shall not be transferable except by will or by the laws of
descent and distribution and shall be exercisable during the lifetime of the
person to whom the option is granted only by such person or by his or her
guardian or legal representative. The person to whom the option is granted may,
by delivering written notice to the Company in a form satisfactory to the
Company, designate a third party who, in the event of the death of the
optionholder, shall thereafter be entitled to exercise the option.
3.
(e) An option shall vest with respect to each optionholder in
forty-eight (48) equal monthly installments over the four (4) year period
commencing on the date of grant, provided that the optionholder has, during the
entire month prior to such vesting date, continuously served as a Non-Employee
Director or as an Employee of or Consultant to the Company or any Affiliate of
the Company, whereupon such Option shall become fully exercisable in accordance
with its terms with respect to that portion of the shares represented by that
installment.
(f) The Company may require any optionholder, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of exercising any
such option: (1) to give written assurances satisfactory to the Company as to
the optionholder's knowledge and experience in financial and business matters;
and (2) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then-currently-effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii), as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then-applicable securities laws.
(g) Notwithstanding anything to the contrary contained herein, an
option may not be exercised unless the shares issuable upon exercise of such
option are then registered under the Securities Act or, if such shares are not
then so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan, the
Company shall keep available at all times the number of shares of stock required
to satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
grant stock bonus awards and issue and sell shares of stock upon exercise of the
options granted under the Plan; provided, however, that this undertaking shall
not require the Company to register under the Securities Act either the Plan,
any option granted under the Plan, or any stock issued or issuable pursuant to
any stock bonus award or option. If the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to grant stock bonus
awards or issue and sell stock upon exercise of such options.
4.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under the
Plan shall constitute general funds of the Company.
9. MISCELLANEOUS.
(a) Neither an optionholder nor any person to whom an option is
transferred under subparagraph 6(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
option unless and until such person has satisfied all requirements for exercise
of the option pursuant to its terms.
(b) Nothing in the Plan or in any instrument executed pursuant
thereto shall confer upon any Non-Employee Director any right to continue in the
service of the Company or any Affiliate or shall affect any right of the
Company, its Board or shareholders or any Affiliate to terminate the service of
any Non-Employee Director with or without cause.
(c) No Non-Employee Director, individually or as a member of a group,
and no beneficiary or other person claiming under or through him or her, shall
have any right, title or interest in or to any shares of common stock of the
Company or any option reserved for the purposes of the Plan except as to such
shares of common stock, if any, as shall have been reserved for him or her
pursuant to a stock bonus award or option granted to him or her.
(d) In connection with each option granted pursuant to the Plan, it
shall be a condition precedent to the Company's obligation to issue or transfer
shares to a Non-Employee Director, or an affiliate of such Non-Employee
Director, or to evidence the removal of any restrictions on transfer, that such
Non-Employee Director make arrangements satisfactory to the Company to insure
that the amount of any federal or other withholding tax required to be withheld
with respect to such sale or transfer, or such removal or lapse, is made
available to the Company for timely payment of such tax.
(e) Throughout the term of any option and upon the grant of stock bonus
awards, the Company shall deliver to the holder of such option or award, not
later than one hundred twenty (120) days after the close of each of the
Company's fiscal years, such financial and other information regarding the
Company as comprises the annual report to the shareholders of the Company
provided for in the bylaws of the Company.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any option or stock bonus award granted under the Plan (through
merger, consolidation,
5.
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure or otherwise), the Plan and outstanding
options and stock bonus awards will be appropriately adjusted in the class(es)
and maximum number of shares subject to the Plan and the class(es) and number of
shares and price per share of stock subject to outstanding options and awards.
(b) In the event of: (1) a dissolution or liquidation of the Company;
(2) a sale of all or substantially all of the assets of the Company; (3) a
merger or consolidation in which the Company is not the surviving corporation;
(4) a reverse merger in which the Company is the surviving corporation but the
shares of the Company's common stock outstanding immediately preceding the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash or otherwise; (5) an acquisition by any person, entity
or group within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or any comparable or successor
provisions (excluding any employee benefit plan, or related trust, sponsored or
maintained by the Company or an Affiliate) of the beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable
successor rule) of securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the election of
directors; or (6) individuals who, as of the date of the adoption of this Plan,
are members of the Board (the "Incumbent Board"), cease for any reason to
constitute at least fifty percent (50%) of the Board (if the election, or
nomination for election, by the Company's shareholders of any new director was
approved by vote of at least fifty (50%) of the Incumbent Board, such new
director shall be considered as a member of the Incumbent Board), then any
surviving corporation, other than the Company, shall assume any options
outstanding under the Plan or shall substitute similar options for those
outstanding under the Plan or, if the Company is the surviving corporation, such
options shall continue in full force and effect.
11. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan.
Except as provided in paragraph 10 relating to adjustments upon changes in
stock, no amendment shall be effective unless approved by the shareholders of
the Company within twelve (12) months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for options and
stock bonus awards under the Plan;
(ii) Modify the requirements as to eligibility for participation
in the Plan (to the extent such modification requires shareholder approval in
order for the Plan to comply with the requirements of Rule 16b-3 promulgated
under the Exchange Act); or
6.
(iii) Modify the Plan in any other way if such modification
requires shareholder approval in order for the Plan to comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act.
(b) Rights and obligations under any option or stock bonus award
granted before any amendment of the Plan shall not be altered or impaired by
such amendment of the Plan unless (i) the Company requests the consent of the
person to whom the option or award was granted and (ii) such person consents
in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on June 7, 2003. No options or stock
bonus awards may be granted under the Plan while the Plan is suspended or after
it is terminated.
(b) Rights and obligations under any option or stock bonus award
granted while the Plan is in effect shall not be altered or impaired by
suspension or termination of the Plan, except with the consent of the person to
whom the option or award was granted.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
(a) The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is approved by the
shareholders of the Company.
(b) No option granted under the Plan shall be exercised or exercisable
and no stock bonus award shall be granted unless and until the condition of
subparagraph 13(a) above has been met.
7.
