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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1998
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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DEPOTECH CORPORATION
(Exact name of Registrant as specified in its charter)
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CALIFORNIA 33-0387911
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
10450 SCIENCE CENTER DRIVE
SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip code)
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1995 STOCK OPTION/STOCK ISSUANCE PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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FRED A. MIDDLETON
CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
DEPOTECH CORPORATION
10450 SCIENCE CENTER DRIVE, SAN DIEGO, CALIFORNIA 92121
(619) 625-2424
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
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1995 STOCK OPTION/STOCK
ISSUANCE PLAN
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Common Stock,
no par value 620,000 shares $1.61(2) $998,200(2) $294.47
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1995 EMPLOYEE STOCK
PURCHASE PLAN
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Common Stock,
no par value 75,000 shares $1.61(2) $120,750(2) $35.62
Aggregate Registration Fee: $330.09
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the: (i) 1995 Stock Option/Stock Issuance
Plan or (ii) 1995 Employee Stock Purchase Plan 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 outstanding shares of the Registrant's Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of the Registrant's Common Stock on June
18, 1998, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
DepoTech Corporation (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed with the SEC on March 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q, as amended, for the
fiscal quarter ended March 31, 1998, filed with the SEC on May 15,
1998 and June 12, 1998, respectively; and
(c) The Registrant's Registration Statement No. 0-26862 on Form 8-A filed
with the SEC on September 26, 1995 in which the terms, rights and
provisions applicable to the Registrant's Common Stock are described.
All reports and definitive proxy or information statements filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 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 a part hereof from the date of filing of such documents. Any
statement contained in a 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 subsequently filed document which also 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Section 317 of the California General Corporation Law allows the
Registrant to indemnify its officers and directors against expenses, judgments,
fines and amounts paid in settlement under certain conditions and subject to
certain limitations.
(b) Article VI of the Bylaws of the Registrant provides that the Registrant
shall have power to indemnify any person who is or was an agent of the
Registrant as provided in Section 317 of the California General Corporation Law.
The rights to indemnity thereunder continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of the person. In addition, expenses
incurred by a director or officer in defending a civil or criminal action, suit
or proceeding by reason of the fact that he or she is or was a director or
officer
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of the Registrant (or was serving at the Registrant's request as a director or
officer of another corporation) shall be paid by the Registrant in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be
indemnified by the Registrant as authorized by the relevant section of the
California General Corporation Law.
(c) Article IV of the Registrant's Articles of Incorporation provides that
the liability of the directors of the Registrant for monetary damages shall be
eliminated to the fullest extent permissible under California law. Accordingly,
a director will not be liable for monetary damages for breach of duty to the
Registrant or its shareholders in any action brought by or in the right of the
Registrant. However, a director remains liable to the extent required by law for
(i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to be
contrary to the best interests of the Registrant or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to the
Registrant or its shareholders in circumstances in which the director was aware,
or should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Registrant or its shareholders, (v)
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's duty to the Registrant or its
shareholders, (vi) any act or omission occurring prior to the date when the
exculpation provision became effective and (vii) any act or omission as an
officer, notwithstanding that the officer is also a director or that his or her
actions, if negligent or improper, have been ratified by the directors. The
effect of the provisions in the Articles of Incorporation is to eliminate the
rights of the Registrant and its shareholders (through shareholders' derivative
suits on behalf of the Registrant) to recover monetary damages against a
director for breach of duty as a director, including breaches resulting from
negligent behavior in the context of transactions involving a change of control
of the Registrant or otherwise, except in the situations described in clauses
(i) through (vii) above. These provisions will not alter the liability of
directors under federal securities laws.
(d) Pursuant to authorization provided under the Articles of Incorporation,
the Registrant has entered into indemnification agreements with each of its
directors and officers. Generally, the indemnification agreements attempt to
provide the maximum protection permitted by California law as it may be amended
from time to time. Moreover, the indemnification agreements provide for certain
additional indemnification. Under such additional indemnification provisions,
however, an individual will not receive indemnification for judgments,
settlements or expenses if he or she is found liable to the Registrant (except
to the extent the court determines he or she is fairly and reasonably entitled
to indemnity for expenses), for settlements not approved by the Registrant or
for settlements and expenses if the settlement is not approved by the court. The
indemnification agreements provide for the Registrant to advance to the
individual any and all reasonable expenses (including legal fees and expenses)
incurred in investigating or defending any such action, suit or proceeding. In
order to receive an advance of expenses, the individual must submit to the
Registrant copies of invoices presented to him or her for such expenses. Also,
the individual must repay such advances upon a final judicial decision that he
or she is not entitled to indemnification. The Registrant's Bylaws contain a
provision of similar effect relating to advancement of expenses to a director or
officer, subject to an undertaking to repay if it is ultimately determined that
indemnification is unavailable.
(e) The Registrant maintains a directors' and officers' liability insurance
policy that, subject to certain limitations, terms and conditions, will insure
the directors and officers of the Registrant against losses arising from
wrongful acts (as defined by the policy) in his or her capacity as a director or
officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
Exhibit No. Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 0-26862 on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(c) of this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this Registration
Statement.
99.1 1995 Stock Option/Stock Issuance Plan (as amended and restated as of May
13, 1998).
99.2 1995 Employee Stock Purchase Plan (as amended and restated as of May 13,
1998).
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, as amended (the "1933 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, and (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 clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference into this Registration Statement; (2) that
for the purpose of determining any liability under the 1933 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; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold upon the termination of the
Registrant's 1995 Stock Option/Stock Issuance Plan and/or 1995 Employee Stock
Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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 1933 Act may
be permitted to directors, officers or controlling persons of the Registrant
pursuant to the indemnity provisions summarized in Item 6 or otherwise, the
Registrant has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the 1933 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 1933 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, 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 San Diego, State of California on June 18, 1998.
DEPOTECH CORPORATION
By: /s/ Fred A. Middleton
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Fred A. Middleton
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of DepoTech Corporation, a
California corporation, do hereby constitute and appoint Fred A. Middleton and
Dana S. McGowan and each of them, the lawful attorneys-in-fact and agents, with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, or either one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulation or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement and to any and all instruments or documents filed as part
of or in conjunction with this Registration Statement or amendments or
supplements thereto, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or either one of them, shall do or cause to
be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
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/s/ Fred A. Middleton
- ---------------------------------- Chief Executive Officer and
Fred A. Middleton Chairman of the Board June 18, 1998
(Principal Executive Officer)
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Signatures Title Date
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/s/ John P. Longenecker, Ph.D.
- ---------------------------------- President and June 18, 1998
John P. Longenecker, Ph.D. Chief Operating Officer
/s/ Dana S. McGowan
- ---------------------------------- Vice President Finance and June 18, 1998
Dana S. McGowan Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Roger C. Davisson
- ---------------------------------- Director June 18, 1998
Roger C. Davisson
/s/ George W. Dunbar, Jr.
- ---------------------------------- Director June 18, 1998
George W. Dunbar, Jr.
/s/ Stephen B. Howell, M.D.
- ---------------------------------- Director June 18, 1998
Stephen B. Howell, M.D.
/s/ Peter Preuss
- ---------------------------------- Director June 18, 1998
Peter Preuss
/s/ Pieter J. Strijkert, Ph.D.
- ---------------------------------- Director June 18, 1998
Pieter J. Strijkert, Ph.D.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
DEPOTECH CORPORATION
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EXHIBIT INDEX
Exhibit
No. Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration
Statement No. 0-26862 on Form 8-A, which is incorporated herein by reference pursuant
to Item 3(c) of this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this Registration Statement.
99.1 1995 Stock Option/Stock Issuance Plan (as amended and restated as of May 13, 1998).
99.2 1995 Employee Stock Purchase Plan (as amended and restated as of May 13, 1998).