As filed with the Securities and Exchange Commission on December 17, 1997
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
Titan Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
94-3171940
(I.R.S. employer identification no.)
400 Oyster Point Blvd., South San Francisco, California 94080
(Address of principal executive offices) (Zip code)
Titan Pharmaceuticals, Inc. 1995 Stock Option Plan, as amended and restated
(Full title of the plan)
Louis R. Bucalo, M.D., Chief Executive Officer
Titan Pharmaceuticals, Inc.
400 Oyster Point Blvd.
South San Francisco, California 94080
(Name and address of agent for service)
(415) 244-4990
(Telephone number, including area code, of agent for service)
Copies to:
Fran Stoller, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, New York 10017
(212) 687-7000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of each Offering Aggregate Amount of
Class of Securities Amount to Price Per Offering Registration
to be Registered be Registered(1) Share(2) Price Fee
- ---------------- ---------------- -------- --------- ------------
Common Stock,
$.001 par value 1,628,899 shares(3) $5.09 $8,291,095.91 $2446.00
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(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, an additional undeterminable number of shares of Common Stock is
being registered to cover any adjustment in the number of shares of Common
Stock pursuant to the anti-dilution provisions of the 1995 Stock Option
Plan (the "Plan").
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price shown is the average of the
high and low price of the Common Stock on December 15, 1997 as reported by
The Nasdaq Stock Market, Inc.
(3) Includes 328,899 shares subject to substitute options granted under the
Plan in connection with a merger transaction.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed below are hereby incorporated by reference into this
Registration Statement. In addition, all documents subsequently filed by Titan
Pharmaceuticals, Inc. (the "Registrant") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (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 in this Registration Statement and to be a part
hereof from the date of filing such documents:
(a) Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1996;
(b) 1. The Company's Current Report on Form 8-K filed with the Commission
on January 15, 1997;
(b) 2. The Company's Quarterly Report on Form 10-QSB for the period ended
March 31, 1997;
(b) 3. The Company's Current Report on Form 8-K filed with the Commission
on May 30, 1997;
(b) 4. The Company's Current Report on Form 8-K filed with the Commission
on June 10, 1997;
(b) 5. The Company's definitive Proxy Statement dated June 25, 1997;
(b) 6. The Company's Quarterly Report on Form 10-QSB for the period ended
June 30, 1997;
(b) 7. The Company's Current Report on Form 8-K filed with the Commission
on July 18, 1997;
(b) 8. The Company's Quarterly Report on Form 10-QSB for the period ended
September 30, 1997;
(b) 9. The Company's Current Report on Form 8-K filed with the Commission
on November 21, 1997;
(c) Registrant's Registration Statement on Form 8-A declared effective
by the Securities and Exchange Commission on January 18, 1996,
including any amendment or supplement thereto.
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Item 4. Description of Securities
No response is required to this item.
Item 5. Interests of Named Experts and Counsel
No response is required to this item.
Item 6. Indemnification of Directors and Officers
The Amended and Restated Certificate of Incorporation and By-Laws of the
Registrant provides that the Registrant shall indemnify any person to the full
extent permitted by the Delaware General Corporation Law (the "GCL"). Section
145 of the GCL, relating to indemnification, is hereby incorporated herein by
reference.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or controlling persons of the Registrant pursuant to the Registrant's
By-laws and the Delaware General Corporation Law, the Registrant has been
informed 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.
The Registrant's Amended and Restated Certificate of Incorporation includes
certain provisions permitted pursuant to Delaware law whereby officers and
directors of the Registrant are to be indemnified against certain liabilities.
The Registrant's Amended and Restated Certificate of Incorporation also limits,
to the fullest extent permitted by Delaware law, a director's liability for
monetary damages for breach of fiduciary duty, including gross negligence,
except liability for (i) breach of the director's duty of loyalty, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) the unlawful payment of a dividend or unlawful stock
purchase or redemption and (iv) any transaction from which the director derives
an improper personal benefit. Delaware law does not eliminate a director's duty
of care and this provision has no effect on the availability of equitable
remedies such as injunction or rescission based upon a director's breach of the
duty of care.
In accordance with Section 102(a)(7) of the GCL, the Amended and Restated
Certificate of Incorporation of the Registrant eliminates the personal liability
of directors to the Registrant or its Shareholders for monetary damages for
breach of fiduciary duty as a director with certain limited exceptions set forth
in Section 102(a)(7).
The Registrant also has entered into indemnification agreements with each
of its executive officers and directors, the form of which is filed as Exhibit
10.6 to the Registrant's Registration Statement on Form SB-2 (File No.
33-99386).
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Item 7. Exemption from Registration Claimed
No response is required to this item.
Item 8. Exhibits
4.1 Titan Pharmaceuticals, Inc. 1995 Stock Option Plan, as amended and
restated
5 Opinion of Bachner, Tally, Polevoy & Misher LLP with respect to the
legality of the Common Stock to be registered hereunder
23.1 Consent of Ernst & Young LLP
23.2 Consent of Bachner, Tally, Polevoy & Misher LLP (contained in Exhibit
5)
24 Power of Attorney (included on signature page)
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;
(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;
(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.
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(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 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 as described above, 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.
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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 South San Francisco, State of California, on the 15th
day December, 1997.
TITAN PHARMACEUTICALS, INC.
By: /s/ Louis R. Bucalo
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Louis R. Bucalo, M.D.,
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below under the heading "Signature" constitutes and appoints Louis R. Bucalo and
Robert E. Farrell or either of them, his true and lawful attorney-in-fact and
agent with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities to sign any or all amendments
to this registration statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
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 for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully 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/ Louis R. Bucalo President, Chief Executive December 15, 1997
- --------------------------- Officer and Director
Louis R. Bucalo, M.D. (Principal Executive Officer)
/s/ Ernst-Gunter Afting Director December 15, 1997
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Ernst-Gunter Afting
/s/ Victor J. Bauer Director December 15, 1997
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Victor J. Bauer
/s/ Michael K. Hsu Director December 15, 1997
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Michael K. Hsu
/s/ Hubert Huckel Director December 15, 1997
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Hubert Huckel, M.D.
/s/ Marvin Jaffe Director December 15, 1997
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Marvin Jaffe, M.D.
/s/ Lindsay A. Rosenwald Director December 15, 1997
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Lindsay A. Rosenwald, M.D.
/s/ Konrad M. Weis Director December 15, 1997
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Konrad M. Weis
/s/ Kenneth J. Widder Director December 15, 1997
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Kenneth J. Widder, M.D.
/s/ Robert E. Farrell Executive Vice President, December 15, 1997
- --------------------------- ChiefFinancial Officer
Robert E. Farrell (Principal Financial
and Accounting Officer)
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INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
4.1 Titan Pharmaceuticals, Inc. 1995 Stock Option Plan,
as amended and restated
5 Opinion of Bachner, Tally, Polevoy & Misher LLP with
respect to the legality of the Common Stock to be
registered hereunder
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Bachner, Tally, Polevoy & Misher LLP
(contained in Exhibit 5)
24 Power of Attorney (included on signature page)