-----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, Nov/4BIE2q/vx+xYXQ84cYYj5paE2YAzlhxvSau0LMZCdGmdNPKa/HUY2iPhyojP pq3an7mk4Z8YGr07hYm/ag== 0001036050-97-000711.txt : 19970825 0001036050-97-000711.hdr.sgml : 19970825 ACCESSION NUMBER: 0001036050-97-000711 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970822 EFFECTIVENESS DATE: 19970822 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: VIROPHARMA INC CENTRAL INDEX KEY: 0000946840 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 232789550 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-34129 FILM NUMBER: 97667950 BUSINESS ADDRESS: STREET 1: 76 GREAT VALLEY PARKWAY STREET 2: PO BOX 5000 CITY: MALVERN STATE: PA ZIP: 19355 BUSINESS PHONE: 6106510200 MAIL ADDRESS: STREET 1: 76 GREAT VALLEY PARKWAY CITY: MALVERN STATE: PA ZIP: 19355 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 21, 1997 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ---------- VIROPHARMA INCORPORATED (Exact name of registrant as specified in its charter) Delaware 23-2789550 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 76 Great Valley Parkway Malvern, Pennsylvania 19355 (Address of principal executive offices) (Zip Code) VIROPHARMA INCORPORATED 1995 STOCK OPTION PLAN (Full title of the plan) CLAUDE H. NASH, Ph.D. President and Chief Executive Officer ViroPharma Incorporated 76 Great Valley Parkway Malvern, Pennsylvania 19355 (Name and address of agent for service) (610) 651-0200 (Telephone number, including area code, of agent for service) ---------- Copy of all communications to: DAVID R. KING, ESQUIRE THOMAS F. DOYLE, ESQUIRE Morgan, Lewis & Bockius LLP ViroPharma Incorporated 2000 One Logan Square 76 Great Valley Parkway Philadelphia, PA 19103 Malvern, Pennsylvania 19355 (215) 963-5000 (610) 651-0200 CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Title of securities Amount to be offering price aggregate Amount of to be registered registered(2) per share (1) offering price (1) registration fee Common Stock, $0.002 par value 1,035,780 $15.25 $15,799,534 $4,787.74 - ---------------------------------------------------------------------------------------------------------- Common Stock, $0.002 par value 142,290 $15.25 $ 2,169,923 $ 657.55 - ---------------------------------------------------------------------------------------------------------- Total 1,178,070 $15.25 $17,969,457 $5,445.29 ==========================================================================================================
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the registration fee, based upon the average of the high and low sales prices of shares of Common Stock on August 19, 1997, as reported on the Nasdaq National Market. (2) Pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement also covers such additional shares as may hereinafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. --------------------------------------- The following documents, as filed by ViroPharma Incorporated (the "Registrant") with the Securities and Exchange Commission (the "Commission"), are incorporated by reference in this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1996. (b) The Registrant's Quarterly Reports on Form 10-Q for the quarter ended March 31, 1997 and the quarter ended June 30, 1997. (c) The description of the Common Stock of the Registrant contained in the Registrant's Registration Statement on Form 8-A, filed by the Registrant with the Commission on November 8, 1996 to register such securities under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document that is also incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Experts ------- The financial statements of ViroPharma Incorporated as of December 31, 1995 and 1996 and for the period from December 5, 1994 (inception) to December 31, 1994, the years ended December 31, 1995 and 1996 and for the period from December 5, 1994 (inception) to December 31, 1996, have been incorporated by reference herein in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. To the extent that KPMG Peat Marwick LLP audits and reports on financial statements of ViroPharma Incorporated issued at future dates, and consents to the use of their report thereon, such financial statements also will be incorporated by reference in this Registration Statement in reliance upon their reports and said authority. ITEM 4. DESCRIPTION OF SECURITIES. ------------------------- Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. -------------------------------------- Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. ----------------------------------------- The Delaware General Corporation Law and the Registrant's By-laws provide for indemnification of the Registrant's directors and officers for liabilities II-2 and expenses that they may incur in such capacities. In general, directors and officers are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the Registrant, and with respect to any criminal action or proceeding, actions that the indemnitee had no reasonable cause to believe were unlawful. Reference is made to the Registrants's By-laws filed as Exhibit 3.2 to the Registrants's Registration Statement on Form S-1 (File No. 333-12407). In addition, certain directors of the Registrant are parties to indemnification agreements with the Registrant. Pursuant to the agreements, such directors are to be indemnified against liabilities and expenses incurred in connection with their services to the Registrant to the fullest extent permitted by Delaware law. Such indemnification is subject to the directors meeting the applicable standard of care and to a determination to indemnify by a majority of disinterested directors (as defined in the agreements) or by independent counsel (also as defined in the agreements). The Underwriting Agreements between the registrant and the representatives of the underwriters in the Registrant's initial public offering and in the Registrant's subsequent public offering provides that the underwriters are obligated, under certain circumstances, to indemnify directors, officers and controlling persons of the Registrant against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the "Act"). Reference is made to the form of Underwriting Agreement filed as Exhibit 1 to the Registrants's Registration Statement on Form S-1 (File No. 333-12407) and to the form of Underwriting Agreement filed as Exhibit 1 to the Registrant's Registration Statement on Form S-1 (File No 333-30005) . ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. ----------------------------------- Not applicable. ITEM 8. EXHIBITS. -------- The following exhibits are filed as part of this Registration Statement. Where so indicated by footnote, exhibits which were previously filed are incorporated by reference . For exhibits incorporated by reference, the location of the exhibit in the previous filing is indicated in parentheses. Exhibit Number Exhibit - ------ ------- 5.1 Opinion of Morgan, Lewis & Bockius LLP 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Morgan, Lewis & Bockius LLP (included in its opinion filed as Exhibit 5.1 hereto) 24.1 Power of Attorney (included on signature page of this Registration Statement) 99.1 ViroPharma Incorporated 1995 Stock Option Plan (1) (Exhibit 10.1) _____________________ (1) Filed as an exhibit to the Registrant's Registration Statement on Form S-1 (File No. 333-12407). II-3 ITEM 9. UNDERTAKINGS. ------------ (a) The undersigned Registrant 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 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; and (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)(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 with the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 that remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, 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 this 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. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES AND POWER OF ATTORNEY 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 Malvern, Pennsylvania, on August 21, 1997. VIROPHARMA INCORPORATED By: /s/ Claude H. Nash _____________________________________ Claude H. Nash, Ph.D. President and Chief Executive Officer 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. EACH PERSON IN SO SIGNING ALSO MAKES, CONSTITUTES AND APPOINTS CLAUDE H. NASH AND VINCENT J. MILANO, AND EACH OF THEM ACTING ALONE, HIS OR HER TRUE AND LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO EXECUTE AND CAUSE TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, ANY AND ALL AMENDMENTS AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, WITH EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, AND HEREBY RATIFIES AND CONFIRMS ALL THAT SAID ATTORNEY-IN-FACT OR HIS OR HER SUBSTITUTE OR SUBSTITUTES MAY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF. Signature Capacity Date --------- -------- ---- /s/ Claude H. Nash - ------------------------- President, Chief Executive August 21, 1997 Claude H. Nash, Ph.D. Officer and Chairman of the Board (Principal Executive Officer) /s/ Vincent J. Milano - ------------------------- Vice President, Finance and August 21, 1997 Vincent J. Milano Administration (Principal Financial and Accounting Officer) /s/ Frank Baldino, Jr., Ph.D. - ----------------------------- Director August 21, 1997 Frank Baldino, Jr., Ph.D. /s/ Steve Dow - ------------------------- Director August 21, 1997 Steve Dow /s/ Jon N. Gilbert - ------------------------- Director August 21, 1997 Jon N. Gilbert II-5 - ------------------------- Director August 21, 1997 Ann H. Lamont /s/ Christopher Moller, Ph.D. - ----------------------------- Director August 21, 1997 Christopher Moller, Ph.D. /s/ Robert J. Glaser - ------------------------- Director August 21, 1997 Robert J. Glaser II-6 VIROPHARMA INCORPORATED REGISTRATION STATEMENT ON FORM S-8 EXHIBIT INDEX ------------- Exhibit Number Exhibit - ------ ------- 5.1 Opinion of Morgan, Lewis & Bockius LLP 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Morgan, Lewis & Bockius LLP (included in its opinion filed as Exhibit 5.1 hereto) 24.1 Power of Attorney (included on signature page of this Registration Statement) 99.1 ViroPharma Incorporated 1995 Stock Option Plan (1) (Exhibit 10.1) - ------------------------------ (1) Filed as an exhibit to the Registrant's Registration Statement on Form S-1 (File No. 333-12407). EX-5.1 2 OPINION OF MORGAN LEWIS & BOCKIUS LLP EXHIBIT 5.1 [LETTERHEAD OF MORGAN, LEWIS & BOCKIUS LLP] August 21, 1997 ViroPharma Incorporated 76 Great Valley Parkway Malvern, Pennsylvania 19355 Re: ViroPharma Incorporated - Registration Statement on Form S-8 Relating to the ViroPharma Incorporated 1995 Stock Option Plan -------------------------------------------------------------- Ladies and Gentlemen: We have acted as counsel to ViroPharma Incorporated, a Delaware corporation (the "Company"), in connection with the preparation of the subject Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to 1,199,745 shares of the Company's common stock, par value $0.002 per share (the "Common Stock"), issuable under the ViroPharma Incorporated 1995 Stock Option Plan (the "Plan"). In rendering the opinion set forth below, we have examined the Registration Statement and the exhibits thereto, including the Plan, certain records of the Company's corporate proceedings as reflected in its minute books and such statutes, records and other documents as we have deemed relevant. In our examination, we have assumed the genuineness of documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies thereof. Based on the foregoing, it is our opinion that the shares of Common Stock issuable under the Plan will be, when issued in accordance with the terms of the Plan, validly issued, fully paid and nonassessable. The opinion set forth above is limited to the General Corporation Law of the State of Delaware, as amended. ViroPharma Incorporated August 21, 1997 Page 2 We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act and the rules or regulations of the Commission thereunder. The opinion expressed herein is solely for your benefit and may be relied upon only by you. Very truly yours, /s/ MORGAN, LEWIS & BOCKIUS LLP EX-23.1 3 INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1 Independent Auditors' Consent. To the Board of Directors and Stockholders of ViroPharma Incorporated: We consent to the use of our reports incorporated by reference and to the reference to our firm under the heading "Experts" in the Registration Statement. KPMG Peat Marwick LLP Philadelphia, Pennsylvania August 21, 1997 -----END PRIVACY-ENHANCED MESSAGE-----