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As filed with the Securities and Exchange Commission on October 29, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Tapestry Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware (State of Incorporation) | 84-1187753 (I.R.S. Employer Identification No.) |
4840 Pearl East Circle, Suite 300W, Boulder, Colorado 80301
(Address of principal executive offices)
Tapestry Pharmaceuticals, Inc.
1994 Long-Term Performance Incentive Plan
Tapestry Pharmaceuticals, Inc.
1998 Stock Option Plan
Tapestry Pharmaceuticals, Inc.
2004 Equity Incentive Plan
Tapestry Pharmaceuticals, Inc.
2004 Non-Employee Directors' Stock Option Plan
(Full title of the plans)
Kai P. Larson
Vice President and General Counsel
Tapestry Pharmaceuticals, Inc.
4840 Pear East Circle, Suite 300W, Boulder, Colorado 80301
Telephone: (303) 516-8500
Telecopier: (303) 530-1296
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Francis R. Wheeler, Esq.
Cooley Godward LLP
380 Interlocken Crescent, Suite 900
Broomfield, Colorado 80021
Telephone: (720) 566-4000
Telecopier: (720) 566-4099
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per Share(2) | Proposed Maximum Aggregate Offering Price (2) | Amount of Registration Fee | ||||
---|---|---|---|---|---|---|---|---|
Common Stock, par value $.0075 per share | 4,300,000 shares | $1.29 | $5,536,746.96 | $701.51 | ||||
- (1)
- Pursuant to Rule 416(a), this Registration Statement shall also cover any additional shares of Registrant's Common Stock that become issuable under the plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant's Common Stock.
- (2)
- Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The price per share and aggregate offering price are calculated in accordance with Rules 457(h) and 457(c) using (a) the weighted average of the prices at which outstanding options may be exercised and (b) the average of the high and low prices of Registrant's Common Stock on October 25, 2004 as reported on the Nasdaq National Market for shares available for future issuance with option exercise prices not known. The chart below illustrates our specific calculations for outstanding options and shares available for future issuance under each employee benefit plan, and the chart above illustrates our calculation of the aggregate registration fee. The price per share in the chart above is a weighted average of the per share prices calculated in the chart below and rounded to the nearest whole cent.
Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per Share (2) | Proposed Maximum Aggregate Offering Price (2) | ||||
---|---|---|---|---|---|---|---|
Shares issuable pursuant to options outstanding under the 1994 Long-Term Performance Incentive Plan Common Stock, par value $.0075 per share | 1,178,346 shares | $1.70(a) | $2,003,188.20 | ||||
Shares issuable upon exercise of options available for grant under the 1994 Long-Term Performance Incentive Plan Common Stock, par value $.0075 per share | 221,654 shares | $1.07(b) | $237,169.78 | ||||
Shares issuable pursuant to options outstanding under the 1998 Stock Option Plan Common Stock, par value $.0075 per share | 388,079 shares | $1.69(a) | $655,853.51 | ||||
Shares issuable upon exercise of options available for grant under the 1998 Stock Option Plan Common Stock, par value $.0075 per share | 111,921 shares | $1.07(b) | $119,755.47 | ||||
Shares issuable pursuant to options outstanding under the 2004 Equity Incentive Plan Common Stock, par value $.0075 per share | 401,000 shares | $0.95(a) | $380,950.00 | ||||
Shares issuable upon exercise of options available for grant under the 2004 Equity Incentive Plan Common Stock, par value $.0075 per share | 1,599,000 shares | $1.07(b) | $1,710,930.00 | ||||
Shares issuable pursuant to options outstanding under the 2004 Non-Employee Directors' Stock Option Plan Common Stock, par value $.0075 per share | 30,000 shares | $1.10(a) | $33,000.00 | ||||
Shares issuable upon exercise of options available for grant under the 2004 Non-Employee Directors' Stock Option Plan Common Stock, par value $.0075 per share | 370,000 shares | $1.07(b) | $395,900.00 | ||||
Total: | 4,300,000 shares | $5,536,746.96 | |||||
- (a)
- Based on the weighted average exercise price of options outstanding.
- (b)
- Based on the proposed maximum offering price of the Registrant's securities computed in accordance with Rule 457(h) under the Securities Act.
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
This Registration Statement on Form S-8 is filed by Tapestry Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and relates to its 1994 Long-Term Performance Incentive Plan, its 1998 Stock Option Plan, its 2004 Equity Incentive Plan, and its 2004 Non-Employee Directors' Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
(a) The following documents filed by the Company with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:
(b) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2003, as amended;
(c) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2004;
(d) Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2004;
(e) Our Current Reports on Form 8-K dated as of September 3, 2004, August 9, 2004, August 5, 2004, July 1, 2004, May 6, 2004, May 4, 2004, March 26, 2004, March 19, 2004, March 11, 2004, February 27, 2004 and February 11, 2004.
(f) The description of our Common Stock contained in our registration statement on Form 8-A filed on November 26, 1996;
(g) The description of rights to purchase our Series B Junior Participating Preferred Stock contained in our registration statement on Form 8-A dated November 26, 1998; and
(h) All reports and other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement 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.
Any statement contained in a document incorporated, or deemed to be incorporated, by reference herein or contained 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 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, except as so modified or superseded, to constitute a part of this Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock being registered hereby has been passed upon for the Company by Cooley Godward LLP, Broomfield, Colorado. As of the date of this Registration Statement, a partner of Cooley Godward LLP is the beneficial owner of 32,700 shares of the Company's common stock.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law permits a Delaware corporation to limit the personal liability of its directors in accordance with the provisions set forth therein. The Certificate of Incorporation of the registrant provides that the personal liability of its directors shall be limited to the fullest extent permitted by applicable law.
Section 145 of the Delaware General Corporation Law permits Delaware corporations to indemnify directors, officers, employees or agents against expenses, judgments and fines reasonably incurred and against certain other liabilities in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person was or is a director, officer, employee or agent of the corporation. The Certificate of Incorporation and the Bylaws of the registrant provide for indemnification to the fullest extent permitted by applicable law. The Certificate of Incorporation limits the liability of the registrant's directors for monetary damages for breaches of the directors' fiduciary duty of care. In addition, the Certificate of Incorporation requires the registrant to indemnify its directors, officers, employees and agents serving at the registrant's request against expenses, judgment (including derivative actions), fines and amounts paid in settlement. This indemnification is limited to actions taken in good faith in the reasonable belief that the conduct was lawful and in or not opposed to the registrant's interests. The Bylaws provide for the indemnification of directors and officers in connection with civil, criminal, administrative or investigative proceedings when acting in their capacities as agents of the registrant. In addition, the registrant has entered into indemnification agreements with each of its directors and executive officers pursuant to which the registrant has agreed to indemnify and hold harmless each director and executive officer to the fullest extent permitted by applicable law. Pursuant to the indemnification agreements, the registrant will pay an advance to indemnitees for expenses related to certain claims pending a final disposition of such claims. The registrant also maintains an officers and directors liability insurance policy.
The foregoing may reduce the likelihood of a derivative litigation against the registrant's directors and executive officers and may discourage or deter stockholders or management from suing directors or executive officers for breaches of their duty of care, even though such actions, if successful, might otherwise benefit the registrant and its stockholders.
The above discussion of the Company's Amended and Restated Certificate of Incorporation, as amended, Bylaws, as amended, and the Delaware General Corporation Law is only a summary and is qualified in its entirety by the full text of each of the foregoing.
The Company has entered into indemnity agreements with each of its directors and executive officers. Such indemnity agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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Exhibit Number | | |
---|---|---|
5.1 | Opinion of Cooley Godward LLP | |
23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement | |
24 | Power of Attorney. |
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) 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 with or furnished to the Commission 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
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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.
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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 Boulder, State of Colorado, on October 29, 2004.
TAPESTRY PHARMACEUTICALS, INC. | ||||
By: | /s/ KAI P. LARSON Kai P. Larson | |||
Title: Vice President, General Counsel |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature | Title | Date | ||
---|---|---|---|---|
* Leonard P. Shaykin | Chairman of the Board an Chief Executive Officer (Principal Executive Officer) | October 29, 2004 | ||
* Patricia A. Pilia, Ph.D. | Executive Vice President and Director | October 29, 2004 | ||
* Gordon H. Link Jr. | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | October 29, 2004 | ||
* Bruce W. Fiedler | Corporate Controller (Principal Accounting Officer) | October 29, 2004 | ||
* Stephen K. Carter, M.D. | Director | October 29, 2004 | ||
* Edward L. Erickson | Director | October 29, 2004 | ||
* George M. Gould | Director | October 29, 2004 | ||
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* Arthur H. Hayes, Jr., M.D. | Director | October 29, 2004 | ||
* Richard N. Perle | Director | October 29, 2004 | ||
* Robert E. Pollack, Ph.D | Director | October 29, 2004 |
| | | | |||
---|---|---|---|---|---|---|
*By: | /s/ KAI P. LARSON Kai P. Larson, as Attorney in Fact | Attorney in Fact | October 29, 2004 |
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Exhibit Number | Description | |
---|---|---|
5.1 | Opinion of Cooley Godward LLP | |
23.1 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement | |
24 | Power of Attorney. |
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SIGNATURES
EXHIBIT INDEX