-----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, IvTzGHF2L+XYH1NJOyhJ4xIhGGlrxUNDQ0cegycWhJFi/NQqZNIg1ZnVq0+cAUYx 4lNftsLw29qsIy1Sg69Rjg== 0000891618-97-003942.txt : 19970930 0000891618-97-003942.hdr.sgml : 19970930 ACCESSION NUMBER: 0000891618-97-003942 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970929 EFFECTIVENESS DATE: 19970929 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARRIS PHARMACEUTICAL CORP/DE/ CENTRAL INDEX KEY: 0000913056 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 222969941 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-36645 FILM NUMBER: 97687586 BUSINESS ADDRESS: STREET 1: 385 OYSTER POINT BLVD STREET 2: SUITE 3 CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 4157378600 MAIL ADDRESS: STREET 1: 385 OYSTER POINT BLVD STREET 2: SUITE 3 CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on September 29, 1997 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _____________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _____________________________ ARRIS PHARMACEUTICAL CORPORATION (Exact name of registrant as specified in its charter) _____________________________ DELAWARE 22-2969941 (State of Incorporation) (I.R.S. Employer Identification No.)
180 KIMBALL WAY SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 829-1000 (Address and telephone number of principal executive offices) _____________________________ 1997 NON-OFFICER EQUITY INCENTIVE PLAN _____________________________ (FULL TITLE OF PLAN) JOHN P. WALKER PRESIDENT AND CHIEF EXECUTIVE OFFICER ARRIS PHARMACEUTICAL CORPORATION 180 KIMBALL WAY SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 829-1000 (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 3000 EL CAMINO REAL PALO ALTO, CALIFORNIA 94306 (650) 843-5000 ____________________________ 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 Stock Options and Common Stock (par 1,000,000 $13.18 - 15.375 $14,853,596.88 $4,501.08 value $.001) ======================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1). The price per share and aggregate offering prices are based upon (i) $13.17 the average exercise price of 236,464 outstanding options to purchase Common Stock pursuant to Registrant's 1997 Non-Officer Equity Incentive Plan and (ii) $15.375, the last sale of Registrant's Common Stock on September 23, 1997, as reported on the Nasdaq National Market. 2 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed by Arris Pharmaceutical Corporation (the "Company") with the Securities and Exchange Commission are incorporated by reference into this Registration Statement: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), that contains audited financial statements for the Company's latest fiscal year for which such statements have been filed, or (2) the Company's effective registration statement on Form 10 or 20-F filed under the Exchange Act containing audited financial statements for the Company's latest fiscal year. (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual reports, the prospectus or the registration statement referred to in (a) above. (c) The description of the Company's Common Stock which is contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. 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. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of Common Stock offered hereby will be passed upon for the Company by Cooley Godward LLP ("Cooley Godward"), Palo Alto, California. Cooley Godward and certain attorneys in such firm own an aggregate of approximately 16,357 shares of the Company's Common Stock. Alan C. Mendelson, a partner of Cooley Godward, is a director and the Secretary of the Company. 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 also provide the Company will indemnify its directors and executive officers, and may indemnify its other officers, employees and other agents, to the fullest extent not prohibited by Delaware law. The Company's Certificate of Incorporation provides for the elimination of liability for monetary damages for breach of the directors' fiduciary duty of care to the Company and its stockholders. These provisions do not eliminate the directors' duty of care and, in appropriate circumstances, equitable remedies such an injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to the Company, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for any transaction from which the director derived an improper personal benefit, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. The Company has entered into agreements with its directors and executive officers that require the Company to indemnify such persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or officer of the Company or any of its affiliated enterprises, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. In addition, the Company has entered into certain agreements in connection with the Company's equity financings which provide for the indemnification of directors and officers in certain circumstances, including indemnification for liabilities arising under the Securities Act of 1933, as amended. The Company also maintains an insurance policy for its directors and officers insuring against certain liabilities arising in their capacities as such. 2. 3 EXHIBITS
EXHIBIT NUMBER 5 Opinion of Counsel. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Counsel. Reference is made to Exhibit 5.1. 24 Power of Attorney is contained on the signature page II-1.
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. 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) (Section 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% 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 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 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 herein. (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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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. 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. 3. 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 South San Francisco, State of California, on September 29, 1997. ARRIS PHARMACEUTICAL CORPORATION By: /s/ John P. Walker -------------------------------- John P. Walker President, Chief Executive Officer and Director POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John P. Walker and Frederick J. Ruegsegger, 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. II-1 5 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/ John P. Walker President, Chief Executive September 22, 1997 - --------------------------------------- Officer and Director John P. Walker (Principal Executive Officer) /s/ Frederick J. Ruegsegger Vice President and Chief September 22, 1997 - --------------------------------------- Financial Officer Frederick J. Ruegsegger (Principal Financial and Accounting Officer) /s/ Brook H. Byers Director September 22, 1997 - --------------------------------------- Brook H. Byers /s/ Anthony B. Evnin, Ph.D. Director September 22, 1997 - --------------------------------------- Anthony B. Evnin, Ph.D. /s/ Donald Kennedy, Ph.D. Director September 22, 1997 - --------------------------------------- Donald Kennedy, Ph.D. /s/ Hans U. Sievertsson, Ph.D. Director September 22, 1997 - --------------------------------------- Hans U. Sievertsson, Ph.D. /s/ Vaughn M. Kailian Director September 22, 1997 - --------------------------------------- Vaughn M. Kailian /s/ Alan C. Mendelson Director September 22, 1997 - --------------------------------------- Alan C. Mendelson
II-2 6 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 5.1 Opinion of Counsel. 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Counsel. Reference is made to Exhibit 5.1. 24.1 Power of Attorney. Reference is made to the Signature Page.
II-3 EX-5.1 2 OPINION OF COUNSEL 1 Exhibit 5.1 ALAN C. MENDELSON Direct: (650) 843-5010 Internet: mendelsonac@cooley.com September 29, 1997 Arris Pharmaceutical Corp. 180 Kimball Way South San Francisco, CA 94080 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by Arris 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 up to 1,000,000 shares of the Company's Common Stock, $0.001 par value (the "Shares"), pursuant to its 1997 Non-Officer Equity Incentive Plan (the "Plan"). In connection with this opinion, we have examined the Registration Statement and related Prospectus, 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 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 issued in accordance with the Plan, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, COOLEY GODWARD LLP By: /s/ Alan C. Mendelson ________________________________________ Alan C. Mendelson cc: Frederick J. Ruegsegger II-4 EX-23.1 3 CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.1 Consent of Ernst & Young LLP, Independent Auditors We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the 1997 Non-Officer Equity Incentive Plan of Arris Pharmaceutical Corporation of our report dated February 10, 1997 with respect to the consolidated financial statements of Arris Pharmaceutical Corporation included in the Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Palo Alto, California August 24, 1997 II-5 -----END PRIVACY-ENHANCED MESSAGE-----