As filed with the Securities and Exchange Commission on January 21, 2003 Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
CONNETICS CORPORATION
| Delaware (State of incorporation) |
94-3173928 (I.R.S. Employer Identification No.) |
3290 West Bayshore Road
Palo Alto, CA 94303
(Address of principal executive offices)
Stock Plan (2000)
1995 Employee Stock Purchase Plan
(Full Title of the Plan)
Thomas G. Wiggans
President and Chief Executive Officer
CONNETICS CORPORATION
3290 West Bayshore Road
Palo Alto, CA 94303
(650) 843-2800
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
| Proposed Maximum | Proposed Maximum | Amount of | |||||||||||||||
| Title of Securities to be | Amount to be | Offering Price per | Aggregate Offering | Registration | |||||||||||||
| Registered (1) | Registered (2) | Share (3) | Price (4) | Fee | |||||||||||||
| Common Stock, $0.001 par
value, to be issued under: |
|||||||||||||||||
Stock Plan (2000)
|
|||||||||||||||||
Issuable Upon Exercise
of Outstanding Options |
676,000 shares | $ | 12.45 | (4) | $ | 8,416,200.00 | (4) | $ | 774.29 | (4) | |||||||
Reserved for Future
Grants |
261,016 shares | $ | 13.99 | (5) | $ | 3,651,613.84 | (5) | $ | 335.95 | (5) | |||||||
1995 Employee Stock Purchase
Plan |
155,722 shares | $ | 13.99 | (5) | $ | 2,178,550.78 | (5) | $ | 200.43 | (5) | |||||||
TOTAL |
1,092,738 shares | $ | 14,246,364.62 | $ | 1,310.67 | ||||||||||||
(1) Each share of common stock being registered pursuant to this Registration Statement includes a right to purchase one one-thousandth of a share of Series B Participating Preferred Stock pursuant to an Amended and Restated Rights Agreement between the Registrant and EquiServe Trust Company, N.A., as Rights Agent.
(2) This Registration Statement shall also cover any additional shares of common stock which become issuable under any of the referenced plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the Registrant’s receipt of consideration, which results in an increase in the number of the Registrant’s outstanding shares of common stock.
(3) Estimated solely for the purpose of determining the registration fee.
(4) Computed in accordance with Rule 457(h) under the Securities Act of 1933, based on the per share exercise price of outstanding options granted under the Stock Plan (2000).
(5) Computed in accordance with Rule 457(h) and Rule 457 (c) of the Securities Act of 1933. Based on the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq National Market on January 16, 2003.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information filed with the Securities and Exchange Commission (the “SEC”) by Connetics Corporation (Commission File No. 0-27406) are hereby incorporated by reference into this Registration Statement:
| a) | Connetics’ Annual Report on Form 10-K for the year ended December 31, 2001, filed with the SEC on March 29, 2002, Amendment No. 1 on Form 10-K/A to our Annual Report on Form 10-K for the year ended December 31, 2001, filed with the SEC on March 29, 2002, and Amendment No. 2 on Form 10-K/A to our Annual Report on Form 10-K/A for the year ended December 31, 2001, filed with the SEC on July 12, 2002. | ||
| b) | Connetics’ Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002, June 30, 2002 and September 30, 2002, filed with the SEC on May 14, 2002, August 14, 2002 and November 13, 2002, respectively. | ||
| c) | Connetics’ Current Reports on Form 8-K, or Form 8-K/A filed with the SEC on January 2, 2002, March 6, 2002, March 19, 2002, May 24, 2002, July 12, 2002, September 16, 2002, October 28, 2002, November 20, 2002, December 2, 2002 and December 23, 2002. | ||
| d) | The description of Connetics’ common stock contained in the Registration Statement on Form 8-A dated December 8, 1995, including any amendments or reports filed with the SEC for the purpose of updating such description. | ||
| e) | The description of Connetics’ Preferred Share Purchase Rights contained in the Registration Statement on Form 8-A dated May 20, 1997, as amended by Amendment No. 1 thereto on Form 8-A/A dated November 27, 2001, including any amendments or reports filed with the SEC for the purpose of updating such description. |
All reports and other documents filed by Connetics 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 which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part of this Registration Statement from the date such documents are filed. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement (or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
Section 145(a) of the Delaware General Corporation Law, or DGCL, provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, other than an action by or in the right of the corporation, by reason of the fact that the person is or was a director or officer of the corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person had no reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director or officer of the corporation, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Connetics has implemented such indemnification provisions in its Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, which provide that officers and directors shall be entitled to be indemnified by Connetics to the fullest extent permitted by law. In addition, Connetics has entered into Indemnification Agreements with its officers and directors.
Section 145(g) of the DGCL provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation against any liability asserted against the person or incurred by the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145. Pursuant to Section 145(g) of the DGCL, Connetics maintains insurance on behalf of the directors and officers serving at the request of Connetics.
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The foregoing summaries are not intended to be complete and are necessarily subject to the complete text of the DGCL, Connetics’ Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, and the arrangements referred to above, and are qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits. See Index to Exhibits (page 8).
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 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.
(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 which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement 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.
(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 Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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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 Palo Alto, State of California, on January 17, 2003.
| Connetics Corporation a Delaware corporation |
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| By: | /s/ John L. Higgins
|
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| John L. Higgins Executive Vice President, Finance and Corporate Development and Chief Financial Officer |
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Katrina J. Church and John L. Higgins, jointly and severally, his attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as he or she might or could do in person, and ratifying and confirming all that the attorney-in-facts and agents, or his substitute or substitutes, may 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/ Thomas G. Wiggans Thomas G. Wiggans |
Principal Executive Officer: President, Chief Executive Officer, and Director |
January 17, 2003 | ||
| /s/ John L. Higgins John L. Higgins |
Principal Financial and Accounting Officer: Executive Vice President, Finance and Corporate Development and Chief Financial Officer |
January 17, 2003 |
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| /s/ G. Kirk Raab G. Kirk Raab |
Chairman of the Board and Director | January 17, 2003 | ||
| /s/ Alexander E. Barkas Alexander E. Barkas |
Director | January 17, 2003 | ||
| /s/ Eugene A. Bauer Eugene A. Bauer |
Director | January 17, 2003 | ||
| /s/ R. Andrew Eckert R. Andrew Eckert |
Director | January 17, 2003 | ||
| /s/ John C. Kane John C. Kane |
Director | January 17, 2003 | ||
| /s/ Thomas D. Kiley Thomas D. Kiley |
Director | January 17, 2003 | ||
| /s/ Glenn A. Oclassen Glenn A. Oclassen |
Director | January 17, 2003 | ||
| /s/ Leon E. Panetta Leon E. Panetta |
Director | January 17, 2003 |
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INDEX TO EXHIBITS
| Exhibit | ||
| Number | ||
| 5.1 | Opinion of Morrison & Foerster LLP | |
| 23.1 | Consent of Morrison & Foerster LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young LLP, Independent Auditors | |
| 24.1 | Power of Attorney (see page 6) | |
| 99.1 | 1995 Employee Stock Purchase Plan as amended and restated through December 12, 2002. |
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