AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 25, 2002
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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RIBAPHARM INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4805655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3300 HYLAND AVENUE
COSTA MESA, CA 92626
(Address of registrant's principal executive offices)
RIBAPHARM INC. 2002 STOCK OPTION AND AWARD PLAN
RIBAPHARM INC. 2002 NONEMPLOYEE DIRECTOR RETAINER FEE PLAN
(Full title of the plans)
ROGER D. LOOMIS, JR.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
RIBAPHARM INC.
3300 HYLAND AVENUE
COSTA MESA, CA 92626
(800) 514-7422
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) OFFERING PRICE REGISTRATION FEE
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Common stock, par value $0.01 per share
under the Stock Option and Award Plan 22,500,000 $9.02 $202,950,000 $18,671.40
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Common Stock par value $0.01 per share under 100,000 $9.02 $902,000 $82.99
the 2002 Nonemployee Director Retainer Fee Plan
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(1) Includes an indeterminate number of shares of Common Stock that may be
issued in the event of stock splits, stock dividends or similar
transactions in accordance with Rule 416 of the Securities Act of
1933, as amended (the "Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act based on the
average of the high and low sales prices for the Common Stock as
reported by the New York Stock Exchange on June 20, 2002, a date
within five business days prior to the date on which this Registration
Statement is being filed.
PART I
EXPLANATORY NOTE
This Form S-8 Registration Statement relates to 22,500,000 shares of
our Common Stock which may be issued under our 2002 Stock Option and Award
Plan, and 100,000 shares of our Common Stock which may be issued under our
2002 Nonemployee Director Retainer Fee Plan (collectively, the "Plans").
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* The documents containing information specified by Part I of this
Registration Statement will be delivered to participants in the Plans as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Act. These documents are not
required to be filed with the SEC but constitute (along with the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
References to the "Registrant" in this Registration Statement shall
mean Ribapharm Inc., a Delaware corporation.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file
at the SEC's public reference facilities located at Room 1204, 450 Fifth
Street, N.W., Washington, D.C., 20549 and 175 W. Jackson Blvd., Suite 900,
Chicago, IL, 60609 upon payment of fees prescribed by the SEC. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference
rooms. Our SEC filings are also available to the public from the SEC's web
site at http://www.sec.gov. Reports, proxy and information statements and
other information concerning us can also be inspected at the offices of the
New York Stock Exchange located at 20 Broad Street, New York, NY 10005.
The SEC allows us to "incorporate by reference" information into this
Registration Statement, which means that we can disclose important
information to you by referring you to another document filed separately
with the SEC. The information incorporated by reference is considered to be
part of this Registration Statement, and later information that we file
with the SEC will automatically update this Registration Statement. We
incorporate by reference the following documents and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the
termination of the offering:
(a) Our prospectus filed with the SEC on April 12, 2002 pursuant to
Rule 424(b) of the Securities Act in connection with our
Registration Statement No. 333-39350 on Form S-1, as amended,
which includes our audited financial statements for each of the
fiscal years ended December 31, 1999, December 31, 2000 and
December 31, 2001, and describes the terms, rights and provisions
applicable to the Common Stock.
(b) Our Registration Statement on Form 8-A filed with the SEC on
April 5, 2002, which describes the terms, rights and provisions
applicable to the Common Stock.
(c) Our Quarterly Report on Form 10-Q for the period ended March 31,
2002 filed with the SEC on May 28, 2002.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Fried, Frank, Harris, Shriver & Jacobson (a partnership including
professional corporations), New York, New York, will pass upon the validity
of the issuance of the shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware law, our certificate of incorporation
provides that no director will be personally liable to us or our
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability:
o for any breach of duty of loyalty to us or to our stockholders;
o for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
o for unlawful payment of dividends or unlawful stock repurchases
or redemptions under Section 174 of the Delaware General
Corporation Law; or
o for any transaction from which the director derived an improper
personal benefit.
Our certificate of incorporation further provides that we must
indemnify our directors to the fullest extent permitted by Delaware law. In
addition, our amended and restated bylaws provide that:
o we are required to indemnify our directors and officers to the
fullest extent permitted by Delaware law, subject to limited
exceptions;
o we may indemnify our other employees and agents to the extent
that we indemnify our officers and directors, unless otherwise
prohibited by law, our certificate of incorporation, our bylaws
or other agreements;
o we are required to advance expenses to our directors and
executive officers as incurred in connection with legal
proceedings against them for which they may be indemnified; and
o the rights conferred in the bylaws are not exclusive.
We entered into indemnification agreements with each of our directors
and officers that would require us to indemnify them against liabilities
that may arise by reason of their status or service as directors or
officers and to advance their expenses incurred as a result of any
proceeding against them. However, we will not indemnify directors or
officers with respect to liabilities arising from willful misconduct of a
culpable nature.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Form of Amended and Restated Certificate of
Incorporation, previously filed as Exhibit 3.1 to
Registration Statement No. 333-39350 on Form S-1,
as amended (the "Form S-1"), and incorporated
herein by reference.
4.2 Form of Amended and Restated By-Laws, previously
filed as Exhibit 3.2 to the Form S-1 and
incorporated herein by reference.
4.3 Ribapharm Inc. 2002 Stock Option and Award Plan,
previously filed as Exhibit 10.1 to the Form S-1
and incorporated herein by reference.
4.4* Amended and Restated Ribapharm Inc. 2002
Nonemployee Director Retainer Fee Plan.
4.5* Amendment No. 1 to Ribapharm Inc. 2002 Stock
Option and Award Plan.
5.1* Opinion of Fried, Frank, Harris, Shriver &
Jacobson.
23.1 Consent of Fried, Frank, Harris, Shriver &
Jacobson (included in Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in the signature pages
of this Registration Statement).
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* Filed herewith.
ITEM 9. UNDERTAKINGS
We hereby undertake:
(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 this 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 this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (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 or furnished to the SEC by us pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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
therein, 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.
(d) That, for the purpose of determining any liability under the
Securities Act, each filing of our 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 therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, we have been advised that in the opinion of the
SEC 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 us
of expenses incurred or paid by one of our directors, officers or
controlling persons in the successful defense of any action, suit or
proceeding) is asserted by one of our directors, officers or controlling
persons in connection with the securities being registered, we 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 us is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Costa Mesa, State of California,
on June 24, 2002.
RIBAPHARM INC.
By:/s/ Johnson Y.N. Lau
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Johnson Y.N. Lau
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each of the undersigned officers and directors of Ribapharm Inc.,
hereby constitutes and appoints Roger D. Loomis, Jr. and Thomas Stankovich,
and each of them acting individually, as his or her true and lawful
attorney-in-fact and agent, each with full power of substitution, for him
or her in any and all capacities, to sign any and all amendments to this
Registration Statement (including any post-effective amendments) and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorney to
any and all amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
and on the dates indicated.
SIGNATURE TITLE DATE
-------------------------- --------------------------------------------------- ------------------
/s/ Johnson Y.N. Lau President, Chief Executive Officer and
-------------------------- Director (Principal Executive Officer) June 24, 2002
Johnson Y.N. Lau
/s/ Thomas Stankovich Senior Vice President and Chief Financial
-------------------------- Officer (Principal Financial Officer and
Thomas Stankovich Principal Accounting Officer) June 24, 2002
/s/ Hans Thierstein
-------------------------- Chairman of the Board and Director June 24, 2002
Hans Thierstein
/s/ Kim Campbell
--------------------------
Kim Campbell Director June 24, 2002
/s/ Roger Guillemin
--------------------------
Roger Guillemin Director June 24, 2002
/s/ Arnold H. Kroll
--------------------------
Arnold H. Kroll Director June 24, 2002
/s/ Roberts A. Smith
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Roberts A. Smith Director June 24, 2002
/s/ John Vierling
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John Vierling Director June 24, 2002
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Form of Amended and Restated Certificate of
Incorporation, previously filed as Exhibit 3.1 to
Registration Statement No. 333-39350 on Form S-1,
as amended (the "Form S-1"), and incorporated
herein by reference.
4.2 Form of Amended and Restated By-Laws, previously
filed as Exhibit 3.2 to the Form S-1 and
incorporated herein by reference.
4.3 Ribapharm Inc. 2002 Stock Option and Award Plan,
previously filed as Exhibit 10.1 to the Form S-1
and incorporated herein by reference.
4.4* Amended and Restated Ribapharm Inc. 2002
Nonemployee Director Retainer Fee Plan.
4.5* Amendment No. 1 to Ribapharm Inc. 2002 Stock
Option and Award Plan.
5.1* Opinion of Fried, Frank, Harris, Shriver &
Jacobson.
23.1 Consent of Fried, Frank, Harris, Shriver &
Jacobson (included in Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in the signature pages
of this Registration Statement).
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* Filed herewith.