As filed with the Securities and Exchange Commission on October 27, 2000.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
VERSICOR INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3278032
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
34790 Ardentech Court
Fremont, California 94555
(Address of principal executive offices)
VERSICOR INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
George F. Horner III
President and CEO
Versicor Inc.
34790 Ardentech Court
Fremont, California 94555
(510) 739-3000
(Name, address, and telephone number,
including area code, of agent for service)
-------------------
COPY TO
Peter T. Healy
O'Melveny & Myers LLP
Embarcadero Center West
275 Battery Street
San Francisco, California 94111
(415) 984-8700
CALCULATION OF REGISTRATION FEE
=========================== ==================== ===================== ======================= =====================
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) unit(2) price(2) registration fee(2)
- --------------------------- -------------------- --------------------- ----------------------- ---------------------
Common Stock, $.001 par 1,100,000 shares $13.69 $15,059,000 $3,976
value
=========================== ==================== ===================== ======================= =====================
(1) This registration statement covers, in addition to the number of
shares of Common Stock stated above, options and other rights to
purchase or acquire the shares of Common Stock covered by the
Prospectus, and pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), an additional indeterminate
number of shares, options and rights, which by reason of certain
events specified in the Versicor Inc. 2000 Employee Stock Purchase
Plan (the "Plan") may become subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in
the aggregate, and the registration fee were calculated based upon
the average of the high and low prices of the Common Stock on
October 25, 2000, as reported on the Nasdaq National Market System.
The Exhibit Index for this Registration Statement is at page 6.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information) will be sent or given to
optionees as specified by Rule 428(b)(1) of the Securities Act. Such documents
need not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These documents, which
include the statement of availability required by Item 2 of Form S-8, and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Versicor Inc. (the "Company") filed with the
Commission are incorporated herein by reference:
(a) the Company's Prospectus, dated August 2, 2000, filed with the
Commission as part of the Company's Registration Statement on Form S-1,
dated March 22, 2000, as subsequently amended (registration
number 333-33022) (the "Form S-1"), which contains audited financial
statements for the Company's fiscal year ended December 31, 1999;
(b) the description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on
July 25, 2000 (registration number 000-31145) (which incorporates the
description of the Common Stock from the Form S-1);
(c) the Company's Form 10-Q for the quarter ending June 30,
2000, filed with the Commission on September 13, 2000.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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 the prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document, all or a portion of which is 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, except as so modified
or amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, par value $0.001 (the "Common Stock"), is
registered pursuant to Section 12 of the Exchange Act. Therefore, the
description of the securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
1
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Sections 102(b)(7) and 145 of the Delaware General
Corporation Law, the Company's Restated Certificate of Incorporation and Amended
and Restated Bylaws include provisions eliminating or limiting the personal
liability of the members of the Company's board of directors to the Company and
its stockholders for monetary damages for breach of fiduciary duty as a
director. This does not apply for any breach of a director's duty of loyalty to
the Company or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, for
paying an unlawful dividend or approving an illegal stock repurchase, or for any
transaction from which a director derived an improper personal benefit.
The Company's Restated Certificate of Incorporation and Amended and
Restated Bylaws also provide that the Company has the power to 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 (other than an
action by or in the right of the Company) by reason of the fact that the person
is or was a director, officer, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, against any and all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement and reasonably incurred in connection with such action, suit or
proceeding. The Company's power to indemnify applies only if the person acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
In the case of an action by or in the right of the Company, no
indemnification may be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the court in which such action or suit was brought
shall determine that despite the adjudication of liability such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall
deem proper. To the extent a director or officer of the Company has been
successful in the defense of any action, suit or proceeding referred to above
or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorney's fees) actually and reasonably
incurred by him or her in connection therewith.
The Company has the power to purchase and maintain insurance on behalf
of any person covering any liability incurred by such person in his or her
capacity as a director, officer, employee or agent of the Company, or arising
our of his or her status as such, whether or not the Company would have the
power to indemnify him or her against such liability.
The foregoing summaries are necessarily subject to the complete text of
the statute, Amended and Restated Bylaws and Restated Certificate of
Incorporation referred to above and are qualified in their entirety by reference
thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 6.
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:
2
(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; 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 paragraphs (a)(1)(i) and
(a)(1)(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 by the registrant
with or furnished to the Commission pursuant
to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this
Registration Statement.
(2) 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.
(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.
(b) 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 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 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
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
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.
3
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 Fremont, State of California, on October 27, 2000.
VERSICOR INC.
By: /s/ George F. Horner III
-------------------------------------
George F. Horner III
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
George F. Horner III as his or her true and lawful attorney-in-fact and agent,
with full powers of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents, 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 to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute may lawfully do or cause to be done by virtue hereof.
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/ David V. Milligan, Ph.D. Chairman of the Board October 27, 2000
- ------------------------------------
David V. Milligan, Ph.D
/s/ George F. Horner III President and Chief Executive Officer October 27, 2000
- ------------------------------------
George F. Horner III
/s/ Richard J. White, Ph.D. Executive Vice President and Chief October 27, 2000
- ------------------------------------ Scientific Officer
Richard J. White, Ph.D
/s/ Dov A. Goldstein, M.D. Vice President-Finance and October 27, 2000
- ------------------------------------ Chief Financial Officer
Dov A. Goldstein, M.D. (and principal accounting officer)
4
Signature Title Date
--------- ----- ----
/s/ Timothy J. Barberich Director October 27, 2000
- ------------------------------------
Timothy J. Barberich
/s/ James H. Cavanaugh, Ph.D. Director October 27, 2000
- ------------------------------------
James H. Cavanaugh, Ph.D
/s/ Mark Leschly Director October 27, 2000
- ------------------------------------
Mark Leschly
/s/ Thomas C. McConnell Director October 27, 2000
- ------------------------------------
Thomas C. McConnell
/s/ Lori F. Rafield, Ph.D. Director October 27, 2000
- ------------------------------------
Lori F. Rafield, Ph.D
/s/ Christopher T. Walsh, Ph.D. Director October 27, 2000
- ------------------------------------
Christopher T. Walsh, Ph.D
5
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1* Versicor Inc. 2000 Employee Stock Purchase Plan.
4.2* Form of Common Stock Certificate.
5.1 Opinion of O'Melveny & Myers, LLP (opinion regarding legality).
23.1 Consent of Independent Accountants.
23.2 Consent of O'Melveny & Myers, LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included in this Registration Statement on
page 4).
* Previously filed and incorporated by reference from the Company's
Registration Statement on Form S-1 filed with the Commission on March 22, 2000
(registration number 333-33022), as amended.
6