As filed with the Securities and Exchange Commission on September 15, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
NEUROCRINE BIOSCIENCES, INC.
(Exact name of Company as specified in its charter)
Delaware 33-0525145
(State of incorporation) (I.R.S. Employer Identification No.)
10555 Science Center Drive
San Diego, California 92121
(Address, including zip code, of Company's principal executive offices)
AMENDED 1992 INCENTIVE STOCK PLAN
(Full title of the plan)
GARY A. LYONS
President, Chief Executive Officer
and Director
10555 Science Center Drive
San Diego, California 92121
(619) 658-7600
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Michael W. Sturrock, Esq.
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
(213) 485-1234
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________
Proposed Proposed
Maximum Maximum
Title of Each Class Amount of Shares Offering Aggregate Amount of
of Securities to to be Price Offering Registration
be Registered Registered(1) Per Share(2) Price(2) Fee(3)
________________________________________________________________________________
Common Stock
$0.001 par value 600,000 $ 4.78125 $ 2,868,750 $ 797.51
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(1) The Amended 1992 Incentive Plan (the "Plan") authorizes the issuance of a
maximum of 5,300,000 shares of common stock of Neurocrine Biosciences,
Inc. (the "Company") plus substitutions or adjustments to shares to
account for any change in corporate capitalization, such as a stock
split, any merger, consolidation, recapitalization or other distribution
of stock or property. The Company previously registered 3,300,000,
800,000 and 600,000 shares of common stock under the Plan on October 21,
1996, July 22, 1997 and June 26, 1998, respectively.
(2) Estimated solely for purposes of computing the registration fee for the
600,000 additional shares registered herewith. Pursuant to Rule 457(c),
the proposed Maximum Offering Price Per Share is based on the high and
low trading prices of the Company's common stock as reported on the
Nasdaq National Market System on September 10, 1999.
(3) Relates solely to the 600,000 additional shares registered herewith.
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On May 21, 1999, the stockholders of Neurocrine Biosciences, Inc., a
Delaware corporation (the "Company"), approved an amendment to the Company's
Amended 1992 Incentive Stock Plan (the "Plan") to increase the number of shares
of common stock, par value $0.001 per share, of the Company (the "Common Stock")
reserved for issuance thereunder from 4,700,000 to 5,300,000. This Registration
Statement on Form S-8 (this "Registration Statement") is being filed by the
Company to increase the number of shares of Common Stock registered under the
Plan to 5,300,000 shares. The Company previously filed Registration Statements
on Form S-8 on October 21, 1996 (File No. 333-14589), July 22, 1997 (File no.
333-31791) and June 26, 1998 (File No. 333-57875) to register 3,300,000, 800,000
and 600,000 shares under the Plan, respectively. The contents of such
Registration Statements are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Company, are incorporated by reference in
this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998; (b) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1999; and (c) The Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1999.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Registration Statement and 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, are
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing 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 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.
Item 4. Description of Securities.
Not required to be filed with this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Page II-1
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law generally
allows the Company to indemnify directors and officers for all expenses,
judgments, fines and amounts in settlement actually paid and reasonably incurred
in connection with any proceedings so long as such party acted in good faith and
in a manner reasonably believed to be in or not opposed to the Company's best
interests and, with respect to any criminal proceedings, if such party had no
reasonable cause to believe his or her conduct to be unlawful. Indemnification
may only be made by the Company if the applicable standard of conduct set forth
in Section 145 has been met by the indemnified party upon a determination made
(i) by the Board of Directors by a majority vote of the directors who are not
parties to such proceedings, even though less than a quorum, or (ii) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (iii) by the stockholders.
Article VII of the Company's Restated Articles of Incorporation
and Article VI, Sections 6.1, 6.2 and 6.3 of the Company's Bylaws provide for
indemnification of its directors and officers, and permit indemnification of
employees and other agents to the maximum extent permitted by the Delaware
General Corporation Law. In addition, the Company has entered into
indemnification agreements with its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this
Registration Statement, which are incorporated herein:
Exhibit
Number Document
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4.1 Form of Lock-Up Agreement(1).
4.2 Form of Common Stock Certificate(1).
4.3 Form of warrant issued to existing warrant holders(1).
4.4 Form of Series A warrant issued in connection with the execution
by the Company of the Unit Purchase Agreement, dated January 19,
1996, by and between the Company, Neuroscience Pharma, Inc. and
the investors signatory thereto(1).
4.5 New Registration Rights Agreement, dated March 29, 1996 by and
among the Company and the investors signatory thereto(1).
4.6 Letter of Intent between Northwest Neurologic, Inc. and the
Company dated February 27, 1998(2).
5.1 Opinion of Latham & Watkins.
10.1 Amended 1992 Incentive Stock Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
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(1) Incorporated by reference to the Company's Registration
Statement filed on April 3, 1996 on Form S-1, as amended
(File No. 333-03172).
(2) Incorporated by reference to the Company's Report on
Form 8-K filed on March 13, 1998.
Page II-2
Item 9. Undertakings.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement 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 purposes 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 post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Company'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 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 Company pursuant to the Delaware General Corporation Law, the Restated
Articles of Incorporation or the Bylaws of the Company, Indemnification
Agreements entered into between the Company and its officers and directors, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 hereunder, the Company 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.
Page II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 this 15th day
of September, 1999.
NEUROCRINE BIOSCIENCES, INC.
By: /s/ Gary A. Lyons
Gary A. Lyons
President and Chief Executive Officer
Page II-4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, Gary A.
Lyons and Paul W. Hawran his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-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 dates indicated.
Signature Title Date
- --------------------- ------------------------------ -----------------
/s/ Gary A. Lyons President, Chief Executive September 14, 1999
- ------------------------ Officer and Director
Gary A. Lyons (Principal Executive Officer)
/s/ Paul W. Hawran Chief Financial Officer September 14, 1999
- ------------------------ (Principal Financing and
Paul W. Hawran Accounting Officer)
/s/ Joseph A. Mollica Chairman of the September 14, 1999
- ------------------------ Board of Directors
Joseph A. Mollica
/s/ Harry F. Hixson, Jr. Director September 14, 1999
- ------------------------
Harry F. Hixson, Jr.
/s/ Richard F. Pops Director September 14, 1999
- ------------------------
Richard F. Pops
/s/ Wylie W. Vale Director September 14, 1999
- ------------------------
Wylie W. Vale
/s/ Stephen A. Sherwin Director September 14, 1999
- ------------------------
Stephen A. Sherwin
Page II-5
INDEX TO EXHIBITS
Exhibit
Number Document
- --------- ----------------------------------------------------------------
4.1 Form of Lock-Up Agreement(1).
4.2 Form of Common Stock Certificate(1).
4.3 Form of warrant issued to existing warrant holders(1).
4.4 Form of Series A warrant issued in connection with the execution
by the Company of the Unit Purchase Agreement, dated January 19,
1996, by and between the Company, Neuroscience Pharma, Inc. and
the investors signatory thereto(1)
4.5 New Registration Rights Agreement, dated March 29, 1996 by and
among the Company and the investors signatory thereto(1).
4.6 Letter of Intent between Northwest NeuroLogic, Inc. and the
Company dated February 27, 1998(2).
5.1 Opinion of Latham & Watkins.
10.1 Amended 1992 Incentive Stock Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
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(1) Incorporated by reference to the Company's Registration
Statement filed on April 3, 1996 on Form S-1, as amended
(File No. 333-03172).
(2) Incorporated by reference to the Company's Report on Form 8-K
filed on March 13, 1998.
Page II-6