sv8
As
filed with the Securities and Exchange Commission on April 15, 2008
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AVANIR PHARMACEUTICALS
(Exact Name of Registrant as Specified in its Charter)
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California
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33-0314804 |
(State or Other Jurisdiction
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(I.R.S. Employer Identification No.) |
of Incorporation or Organization) |
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101 Enterprise, Suite 300
Aliso Viejo, California 92656
(Address of Principal Executive Offices)
Avanir Pharmaceuticals Amended and Restated 2003 Equity Incentive Plan*
Avanir Pharmaceuticals Amended and Restated 2005 Equity Incentive Plan*
(Full Title of the Plans)
* See explanatory note on following page
Keith Katkin
President and Chief Executive Officer
101 Enterprise, Suite 300
Aliso Viejo, California 92656
Telephone: (949) 389-6700
Facsimile: (949) 643-6820
(Name and Address of Agent For Service)
Copy to:
Ryan A. Murr
Goodwin Procter LLP
4365 Executive Drive, Suite 300
San Diego, California 92121
Telephone: (858) 202-2700
Facsimile: (858) 457-1255
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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o Large accelerated filer
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o Accelerated filer
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þ Non-accelerated filer
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o Smaller reporting company |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Title of Securities |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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to be Registered |
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Registered (1) |
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per Share (2) |
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Offering Price (1) |
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Fee |
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Class A common stock, no par value per share |
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4,341,148 shares |
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$ 1.07 |
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$ 4,645,029 |
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$ 182.55 |
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(1) |
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Pursuant to Rule 416(a) of the Securities Act of 1933, this registration statement also covers
any additional securities that may be offered or issued in connection with any stock split, stock
dividend or similar transaction under the anti-dilution provisions of the registrants Amended and
Restated 2003 Equity Incentive Plan and Amended and Restated 2005 Equity Incentive Plan or the
forms of awards granted thereunder. Each share of Class A common stock includes certain purchase
rights issued pursuant to that certain Rights Agreement, as amended, dated as of March 5, 1999,
between the Registrant and American Stock Transfer & Trust Company. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of
the Securities Act of 1933, and based on the average of the high and low sale prices of the
Registrants Class A common stock, as quoted on the Nasdaq
Global Market, on April 14, 2008, for
the remaining shares registered hereby. |
TABLE OF CONTENTS
EXPLANATORY NOTE:
This Registration Statement on Form S-8 is being filed by the registrant to
register (i) 325,000 shares of Class A common stock issuable under the
registrants Amended and Restated 2005 Equity Incentive Plan (the 2005 Plan),
which shares represent the previously approved and announced evergreen
increases under the 2005 Plan for fiscal 2008, and (ii) 4,016,148 shares of
Class A common stock issuable under the registrants Amended and Restated 2003
Equity Incentive Plan (the 2003 Plan), which shares represent the previously
approved and announced evergreen increase under the 2003
Plan for calendar years
2007 (1,857,928) and 2008 (2,158,220).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with or furnished to the Securities and
Exchange Commission (the Commission) by the registrant are incorporated herein by reference and
made a part hereof:
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The registrants Annual Report on Form 10-K for the year ended September 30, 2007; |
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The registrants Quarterly Report on Form 10-Q for the quarter ended December 31, 2007; |
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The registrants Current Reports on Form 8-K filed with the Commission on October 9,
2007, November 13, 2007, November 21, 2007, December 7, 2007, December 10, 2007, December
13, 2007, December 27, 2007, February 4, 2008,
February 27, 2008, March 12, 2008, March 27, 2008 and
April 10, 2008; and |
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The description of the Class A common stock of the registrant contained in the
registrants registration statement on Form 8-A (File No. 001-15803) filed on April 5,
2000, and as amended April 13, 2000 and April 10, 2008, including any amendment or report filed for the
purpose of updating such description. |
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the effective date of this Registration Statement, prior to the filing
of a post-effective amendment to this Registration Statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The registrants Restated Articles of Incorporation (the Articles) provide that, to the
extent permitted by applicable law, the registrants directors shall not be personally liable to
the registrant or its shareholders for monetary damages for any breach of fiduciary duty as
directors of the registrant. The Articles eliminate the personal liability of directors to the
fullest extent permitted by the California Corporations Law and, together with the registrants
Bylaws (the Bylaws), provides that the registrant shall fully 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 (whether civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the registrant, or is or was serving at the request
of the registrant as a director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding. The registrant has also obtained liability
insurance for its officers and directors and has entered into indemnification agreements with its
directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit |
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No. |
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Description |
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4.1
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Form of Class A Common Stock Certificate (1) |
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5.1
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Opinion of Goodwin Procter LLP |
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23.1
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Consent of KMJ Corbin & Company LLP |
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23.2
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Consent of Deloitte & Touche LLP |
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23.3
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Consent of Goodwin Procter LLP (filed as a part of Exhibit 5.1) |
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24.1
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Power of attorney (set forth on signature page) |
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99.1
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Avanir Pharmaceuticals Amended and Restated 2003 Equity Incentive Plan (2) |
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99.2
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Form of Non-Qualified Stock Option Award Notice for use with 2003 Equity Incentive Plan (2) |
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99.3
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Form of Restricted Stock Unit Grant Notice for use with 2003 Equity Incentive Plan (2) |
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99.4
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Form of Restricted Stock Grant Notice (cash consideration) for use with 2003 Equity
Incentive Plan (2) |
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99.5
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Avanir Pharmaceuticals Amended and Restated 2005 Equity Incentive Plan (3) |
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99.6
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Form of Stock Option Agreement for use with 2005 Equity Incentive Plan (4) |
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99.7
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Form of Restricted Stock Unit Agreement for use with 2005 Equity Incentive Plan and 2003
Equity Incentive Plan (5) |
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99.8
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Form of Restricted Stock Agreement for use with 2005 Equity Incentive Plan and 2003 Equity
Incentive Plan (5) |
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99.9
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Form of Inducement Stock Option Agreement (6) |
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(1) |
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Filed as an exhibit to the Registrants Registration Statement on Form S-1 (File No.
33-32742) declared effective by the Commission on May 8, 1990 and incorporated herein by
reference. |
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(2) |
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Filed as an exhibit to the Registrants Quarterly Report on Form 10-Q, filed May 13, 2003 and
incorporated herein by reference. |
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(3) |
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Filed as an exhibit to the Registrants Annual Report on Form 10-K, filed December 14, 2005
and incorporated herein by reference. |
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(4) |
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Filed as an exhibit to the Registrants Current Report on Form 8-K, filed March 23, 2005 and
incorporated herein by reference. |
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(5) |
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Filed as an exhibit to the Registrants Annual Report on Form 10-K, filed December 28, 2006
and incorporated herein by reference. |
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(6) |
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Filed as an exhibit to the Registrants Registration Statement on Form S-8 (File No. 333-144221) declared effective by the Commission on June 29, 2007 and incorporated herein by reference. |
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 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) 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)(1)(i) and (a)(1)(ii) of this section shall not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) 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 which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser: each prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness; provided, however, that
no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to
the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants 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 plans annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the 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.
(h) 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.
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 Aliso Viejo, California, on
April 15, 2008.
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Avanir Pharmaceuticals
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By: |
/s/ Keith Katkin |
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Keith Katkin |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints each of Keith Katkin and Christine G.
Ocampo, his or her attorney-in-fact, with power of substitution, in his or her name and in the
capacity indicated below, to sign any and all further amendments (including post-effective
amendments) to this registration statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, 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 date indicated.
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Signature |
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Title |
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Date |
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/s/ Keith
Katkin
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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April 15, 2008 |
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/s/ Christine
G. Ocampo
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Vice President, Finance
(Principal Financial and Accounting Officer)
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April 15, 2008 |
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/s/ Stephen
G. Austin
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Director
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April 15, 2008 |
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/s/ Charles
A. Mathews
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Director
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April 15, 2008 |
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/s/ David
J. Mazzo
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Director
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April 15, 2008 |
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/s/ Dennis
G. Podlesak
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Director
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April 15, 2008 |
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/s/ Craig
A. Wheeler
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Director
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April 15, 2008 |
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/s/ Scott
M. Whitcup
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Director
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April 15, 2008 |
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EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
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4.1
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Form of Class A Common Stock Certificate (1) |
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5.1
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Opinion of Goodwin Procter LLP |
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23.1
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Consent of KMJ Corbin & Company LLP |
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23.2
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Consent of Deloitte & Touche LLP |
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23.3
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Consent of Goodwin Procter LLP (filed as a part of Exhibit 5.1) |
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24.1
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Power of attorney (set forth on signature page) |
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99.1
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Avanir Pharmaceuticals Amended and Restated 2003 Equity Incentive Plan (2) |
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99.2
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Form of Non-Qualified Stock Option Award Notice for use with 2003 Equity Incentive Plan (2) |
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99.3
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Form of Restricted Stock Unit Grant Notice for use with 2003 Equity Incentive Plan (2) |
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99.4
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Form of Restricted Stock Grant Notice (cash consideration) for use with 2003 Equity Incentive Plan (2) |
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99.5
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Avanir Pharmaceuticals Amended and Restated 2005 Equity Incentive Plan (3) |
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99.6
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Form of Stock Option Agreement for use with 2005 Equity Incentive Plan (4) |
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99.7
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Form of Restricted Stock Unit Agreement for use with 2005 Equity Incentive Plan and 2003 Equity
Incentive Plan (5) |
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99.8
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Form of Restricted Stock Agreement for use with 2005 Equity Incentive Plan and 2003 Equity Incentive
Plan (5) |
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99.9
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Form of Inducement Stock Option Agreement (6) |
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(1) |
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Filed as an exhibit to the Registrants Registration Statement on Form S-1 (File No.
33-32742) declared effective by the Commission on May 8, 1990 and incorporated herein by
reference. |
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(2) |
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Filed as an exhibit to the Registrants Quarterly Report on Form 10-Q, filed May 13, 2003 and
incorporated herein by reference. |
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(3) |
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Filed as an exhibit to the Registrants Annual Report on Form 10-K, filed December 14, 2005
and incorporated herein by reference. |
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(4) |
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Filed as an exhibit to the Registrants Current Report on Form 8-K, filed March 23, 2005 and
incorporated herein by reference. |
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(5) |
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Filed as an exhibit to the Registrants Annual Report on Form 10-K, filed December 28, 2006
and incorporated herein by reference. |
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(6) |
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Filed as an exhibit to the Registrants Registration Statement on Form S-8 (File No. 333-144221) declared effective by the Commission on June 29, 2007 and incorporated herein by reference. |