-----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, QqfdyAdTKx8ubO+jU0GJYELNOd3+FzZDPEIB/A8Sp8O8M7XLGDGhYYP3jx1YqhLu 3acmtxB8QQI1zvXF/wLBQQ== 0000912057-97-005102.txt : 19970222 0000912057-97-005102.hdr.sgml : 19970222 ACCESSION NUMBER: 0000912057-97-005102 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970213 EFFECTIVENESS DATE: 19970213 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: COCENSYS INC CENTRAL INDEX KEY: 0000895034 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 330538836 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-21761 FILM NUMBER: 97531523 BUSINESS ADDRESS: STREET 1: 213 TECHNOLOGY DR CITY: IRVINE STATE: CA ZIP: 92718 BUSINESS PHONE: 7147536100 MAIL ADDRESS: STREET 2: 213 TECHNOLOGY DRIVE CITY: IRVINE STATE: CA ZIP: 92718 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on February 13, 1997 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- COCENSYS, INC. (Exact name of registrant as specified in its charter) ------------------------- DELAWARE 33-0538836 (State of Incorporation) (I.R.S. Employer Identification No.) 213 TECHNOLOGY DRIVE IRVINE, CALIFORNIA 92718 (Address and telephone number of principal executive offices) ------------------------- ISSUANCE AGREEMENT (Full title of the plans) F. Richard Nichol, Ph.D. President and Chief Executive Officer CoCensys, Inc. 213 Technology Drive Irvine, California 92718 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------- Copies to: Alan C. Mendelson, Esq. Cooley Godward LLP Five Palo Alto Square Palo Alto, California 94306 ------------------------- CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------ PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------ Common Stock (par 21,094 $6.5625 $138,429.38 $42.00 value $.001) - ------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant's Common Stock on February 10, 1997 as reported on the Nasdaq National Market. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by CoCensys, Inc., a Delaware corporation (the "Company") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Company's annual report on Form 10-K, as amended by form 10-K/A for the year ended December 31, 1995. (b) The Company's quarterly reports on Form 10-Q for the quarters ended March 31, June 30 and September 30, 1996. (c) The Company's current report on Form 8-K, filed January 5, 1996. (d) The description of the Company's Common Stock contained in the Company's registration statement on Form 8-A filed December 10, 1992. (e) The description of the Company's Preferred Share Purchase Rights contained in the Company's registration statement on form 8-A filed May 16, 1995. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and documents. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under Section 145 of the Delaware General Corporation Law, the Company has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Company's Bylaws require the Company to indemnify its directors and executive officers, and permit the Company to indemnify its other officers, employees and other agents, to the fullest extent permitted by Delaware law; provided, however, that the Company may limit the extent of such indemnification by individual contracts with its directors and executive officers; and provided further, that the Company shall not be required to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the Company or its directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, or (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Delaware General Corporation Law. The Bylaws also require the Company to advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with such proceeding, upon receipt of an undertaking by or on behalf of such person to repay said amounts if it should be determined ultimately that such person is not entitled to be indemnified under the Company's Bylaws or otherwise. The Company has entered into indemnity agreements with each of its directors and executive officers. Such indemnity agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. 2. ITEM 8. EXHIBITS EXHIBIT NUMBER 5 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement. 99.1 Issuance Agreement ITEM 9. UNDERTAKINGS 1. The undersigned registrant hereby undertakes: (a) 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; (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; PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the issuer pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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) 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. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, 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 the 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. 3. 3. Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue. 4. SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Irvine, State of California, on February 12, 1997. COCENSYS, INC. /s/ F. Richard Nichol ---------------------------------------- F. Richard Nichol President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints F. RICHARD NICHOL and PETER E. JANSEN and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his 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. SIGNATURE TITLE DATE /s/ Lowell E. Sears Chairman of the Board February 12, 1997 - ------------------------- Lowell E. Sears /s/ F. Richard Nichol President and Chief February 12, 1997 - ------------------------- Executive Officer; F. Richard Nichol, Ph.D. Director /s/ Peter E. Jansen Vice President and Chief February 12, 1997 - ------------------------- Financial Officer Peter E. Jansen (Principal Financial Officer) /s/ Alan C. Mendelson Director February 12, 1997 - ------------------------- Alan C. Mendelson /s/ James C. Blair Director February 12, 1997 - ------------------------- James C. Blair, Ph.D. /s/ Kelvin W. Gee Director February 12, 1997 - ------------------------- Kelvin W. Gee, Ph.D. /s/ Robert G. McNeil Director February 12, 1997 - ------------------------- Robert G. McNeil, Ph.D. /s/ Timothy J. Rink Director February 12, 1997 - ------------------------- Timothy J. Rink, M.D., Sc.D. /s/ Eckard Weber Director February 12, 1997 - ------------------------- Eckard Weber, M.D. EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION 5 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement 99.1 Issuance Agreement EX-5 2 EXHIBIT 5 Exhibit 5 [ON COOLEY GODWARD LLP LETTERHEAD] February 13, 1997 CoCensys, Inc. 213 Technology Drive Irvine, CA 92718 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by CoCensys, Inc. (the "Company) of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 21,094 shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant to an agreement dated February 12, 1997 (the "Issuance Agreement"). In connection with this opinion, we have examined the Registration Statement, the Issuance Agreement, your Certificate of Incorporation 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 original, 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 Issuance Agreement, 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 /s/ Andrea Vachss Andrea Vachss 1. EX-23.1 3 EXHIBIT 23.1 Exhibit 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the offering of up to 21,094 shares of the Company's common stock pursuant to an Issuance Agreement of our report dated February 28, 1996, with respect to the consolidated financial statements of CoCensys, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 1995, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Orange County, California February 11, 1997 EX-99.1 4 EXHIBIT 99.1 Exhibit 99.1 [COCENSYS, INC. LETTERHEAD] February 12, 1997 Daniel L. Korpolinski 2611 Point Del Mar Corona del Mar, CA 92626 Re: Issuance of Common Stock Dear Dan: This will confirm CoCensys, Inc.'s agreement to issue to you 21,093.8 shares of the Company's common stock. It is anticipated that such issuance will be completed as soon as practicable following effectiveness of an S-8 registration statement covering such issuance. Sincerely, /s/ Peter E. Jansen - --------------------------------------- Peter E. Jansen Vice President and Chief Financial Officer 1. -----END PRIVACY-ENHANCED MESSAGE-----