As filed with the Securities and Exchange Commission on March 4, 2002
Registration No. 333-66986
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO
FORM S-4 REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BARR LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
New York 2834 22-1927534
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
Two Quaker Road
P.O. Box D 2900
Pomona, New York 10970-0519
(845) 362-1100
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Duramed Pharmaceuticals, Inc. 1986 Stock Option Plan
Duramed Pharmaceuticals, Inc. 1988 Stock Option Plan
Duramed Pharmaceuticals, Inc. 1991 Stock Option Plan for Non-Employee Directors
Duramed Pharmaceuticals, Inc. 1997 Stock Option Plan
Duramed Pharmaceuticals, Inc. 2000 Stock Option Plan
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Frederick J. Killion, Esq.
Senior Vice President and General Counsel
Barr Laboratories, Inc.
Two Quaker Road
P.O. Box D 2900
Pomona, New York 10970-0519
(845) 362-1100
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
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Please send copies of all communications to:
Robert W. Ericson, Esq.
Winston & Strawn
200 Park Avenue
New York, New York 10166
(212) 294-6700
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Securities to be Amount Offering Proposed Maximum Amount of
Registered (1) to be Registered Price Per Unit Aggregate Offering Price Registration Fee
Common Stock, 792, 893(2) N.A.(3) N.A.(3) N.A.(3)
$0.01 per share
(1) This post-effective amendment No. 1 relates to securities of the registrant
originally registered on registrant's registration statement on Form S-4
(333-66986), which was amended by Amendment No. 1 on September 7, 2001 and
became effective on September 11, 2001, and to which this post-effective
amendment No. 1 is an amendment.
(2) Consisting of, on an as converted basis, 792,893 shares of common stock, par
value $0.01 per share, of Barr Laboratories, Inc. ("Barr common stock") reserved
for issuance pursuant to the exercise of certain stock option plans assumed by
the registrant in connection with the merger of Beta Merger Sub I, Inc., a
Delaware corporation and a wholly-owned subsidiary of the registrant, with and
into Duramed Pharmaceuticals, Inc.
(3) Not applicable. All filing fees payable in connection with the issuance of
these securities were paid in connection with the filing of the registrant's
registration statement on Form S-4 referenced above.
INTRODUCTORY STATEMENT
Barr Laboratories, Inc., a New York corporation ("Barr"), hereby amends
its registration statement on Form S-4 (No. 333-66986), which was amended by
Amendment No. 1 on September 7, 2001 and became effective on September 11, 2001,
by filing this post-effective amendment No. 1 on Form S-8 relating to the sale
of up to 792,893 shares of Barr common stock issuable upon the exercise of the
stock options granted under the Duramed Pharmaceuticals, Inc. 1986 Stock Option
Plan, the Duramed Pharmaceuticals, Inc. 1988 Stock Option Plan, the Duramed
Pharmaceuticals, Inc. 1991 Stock Option Plan for Non-Employee Directors, the
Duramed Pharmaceuticals, Inc. 1997 Stock Option Plan and the Duramed
Pharmaceuticals, Inc. 2000 Stock Option Plan, all as amended (collectively, the
"Duramed Plans").
On October 24, 2001, Barr and Duramed Pharmaceuticals, Inc., a Delaware
corporation ("Duramed"), consummated the merger of Duramed with and into Beta
Merger Sub I, Inc., a Delaware corporation and our wholly-owned subsidiary, as
provided by the agreement and plan of merger, dated as of June 29, 2001, by and
among Barr, Duramed and Beta Merger Sub I, Inc. Duramed's common stock is no
longer transferable, and all certificates evidencing shares of Duramed common
stock represent only the right to receive, without interest, shares of Barr
common stock pursuant to the merger agreement. In connection with the merger,
Barr assumed all of the Duramed Plans which will constitute an option to
acquire, on substantially the same terms and conditions as were applicable under
such option immediately prior to the completion of the merger, the number of
shares of Barr common stock (rounded down to the nearest whole share) equal to
the number of shares of Duramed common stock that could have been acquired under
such Duramed Plans multiplied by .2562. The exercise price of such options shall
be equal to (x) the aggregate exercise price for Duramed common stock
purchasable pursuant to the terms of such Duramed Plans divided by (y) .2562.
The designation of this post-effective amendment as Registration No.
333-66986 denotes that this post-effective amendment relates only to the shares
of Barr common stock issuable upon the exercise of stock options under the
Duramed Plans and that this is the post-effective amendment on Form S-8 to the
Form S-4 filed with respect to such shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Barr with the Securities and Exchange
Commission are in incorporated herein by reference:
- annual report on Form 10-K for the fiscal year ended June 30,
2001, filed on August 24, 2001
- quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 2001, filed on November 14, 2001
- quarterly report on Form 10-Q for the fiscal quarter ended
December 31, 2001, filed on February 12, 2002
- current report on Form 8-K, filed on September 21, 2001
- current report on Form 8-K, filed on November 7, 2001
- current report on Form 8-K, filed on December 20, 2001
- the description of Barr common stock contained in Item 1 of
registration statement on Form 8-A12B, as filed with the
Securities and Exchange Commission on January 30, 1998
pursuant to Section 12(b) of the Securities Act.
- Duramed Pharmaceuticals, Inc. 2000 Stock Option Plan, as filed
as an exhibit to Duramed Pharmaceuticals, Inc.'s proxy
statement relating to the 2000 Annual Meeting of Stockholders,
filed on August 1, 2000
- Duramed Pharmaceuticals, Inc. 1997 Stock Option Plan, as filed
as an exhibit to Duramed Pharmaceuticals, Inc.'s proxy
statement relating to the 1997 Annual Meeting of Stockholders,
filed on August 26, 1997
- Duramed Pharmaceuticals, Inc. 1991 Stock Option Plan for
Non-Employee Directors, as filed as an exhibit to Duramed
Pharmaceuticals, Inc.'s proxy statement relating to the 1993
Annual Meeting of Stockholders, filed on July 27, 1993
- Duramed Pharmaceuticals, Inc. 1988 Stock Option Plan, as filed
as an exhibit to Duramed Pharmaceuticals, Inc.'s proxy
statement relating to the 1993 Annual Meeting of Stockholders,
filed on July 27, 1993
- Duramed Pharmaceuticals, Inc. 1986 Stock Option Plan, as filed
as an exhibit to Duramed Pharmaceuticals, Inc.'s annual report
on Form 10-K for the fiscal year ended December 31, 1992,
filed on May 26, 1993
Barr also incorporates by reference additional documents that may be
filed with the Securities and Exchange Commission under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act subsequent to the date of this
prospectus 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 herein and to be a part hereof from the date of filing of such
documents (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by Barr pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act in each year during which the
offering made hereby is in effect prior to the filing with the Securities and
Exchange Commission of the registrant's annual report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference herein
or be a part hereof from and after the filing of such annual report on Form
10-K.
Any statement contained in an Incorporated Document or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof 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 hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares Barr common stock being
registered hereby has been passed upon for the registrant by Winston & Strawn,
New York, New York which from time to time acts as counsel for Barr and its
subsidiaries.
Item 6. Indemnification of Directors and Officers.
Sections 721 through 726 of the New York Business Corporation Law
contain detailed provisions for indemnification of directors and officers of New
York corporations against judgments, penalties, fines, settlements and
reasonable expenses in connection with litigation. Such statutory provisions are
not exclusive of any rights to indemnification granted under Barr's certificate
of incorporation, bylaws, indemnification agreements or otherwise.
Article Eight of Barr's certificate of incorporation and Article X of
Barr's bylaws, permits, but do not require, us to indemnify our directors and
officers to the fullest extent permitted by law.
Barr has purchased insurance which insures (subject to certain terms
and conditions, exclusions and deductibles) it against certain costs which Barr
might be required to pay by way of indemnification of its directors and officers
under its certificate of incorporation or bylaws, indemnification agreements or
otherwise and protects individual directors and officers from certain losses for
which they might not be indemnified by Barr. In addition, Barr has purchased
insurance which provides liability coverage (subject to certain terms and
conditions, exclusions and deductibles) for amounts which Barr, or the
fiduciaries under its employee benefit plans, which may include its directors,
officers and employees, might be required to pay as a result of a breach of
fiduciary duty.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Composite Restated Certificate of Incorporation of Barr
Laboratories, Inc. (incorporated herein by reference to Barr's
Annual Report on Form 10-K for Fiscal Year ended June 30,
1999, filed on August 31, 1999).
4.2 Bylaws of Barr Laboratories, Inc. (incorporated herein by
reference to Barr's Annual Report on Form 10-K for Fiscal Year
ended June 30, 1999, filed on August 31, 1999).
5.1 Opinion of Winston & Strawn regarding the validity of
securities to be issued
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1)
24.1 Power of Attorney (incorporated herein by reference to
signature page to Barr's Registration Statement on Form S-4
(333-66986) dated August 6, 2001)
99.1 1986 Stock Option Plan, as amended through February 16, 1994
(incorporated herein by reference to Duramed Pharmaceuticals,
Inc.'s Annual Report on Form-10K for Fiscal Year ended
December 31, 1992, filed on May 26, 1993)
99.2 1988 Stock Option Plan, as amended through July 24, 1998
(incorporated herein by reference to Duramed Pharmaceuticals,
Inc.'s Proxy Statement relating to the 1993 Annual Meeting of
Stockholders, filed on July 27, 1993)
99.3 1991 Stock Option Plan for Non-Employee Directors, as amended
through July 24, 1998 (incorporated herein by reference to
Duramed Pharmaceuticals, Inc.'s Proxy Statement relating to
the 1993 Annual Meeting of Stockholders, filed on July 27,
1993)
99.4 1997 Stock Option Plan (incorporated herein by reference to
Duramed Pharmaceuticals, Inc.'s Proxy Statement relating to
the 1997 Annual Meeting of Stockholders, filed on August 26,
1997)
99.5 2000 Stock Option Plan, as amended through January 19, 2001
(incorporated herein by reference to Duramed Pharmaceuticals,
Inc.'s Proxy Statement relating to the 2000 Annual Meeting of
Stockholders, filed on August 1, 2000)
Item 9. Undertakings.
(a) The 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;
(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.
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 SEC 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; 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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above 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 pursuant to Section 13 or Section 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 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 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 referred to in Item 15 (other than the
insurance policies referred to therein), 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 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 against
the registrant 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.
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 the requirements for filing on Form S-8 and has duly caused this
post-effective amendment No. 1 on Form S-8 to Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, in Pomona, New York on
March 4, 2002.
BARR LABORATORIES, INC.
By: /s/ Bruce L. Downey
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Name: Bruce L. Downey
Title: Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
post-effective amendment No. 1 on Form S-8 to Form S-4 has been signed by the
following persons in the capacities indicated.
Signature Title Date
- --------- ----- ----
(1) Principal Executive Officer
Chairman of the Board of Directors
and March 4, 2002
Chief Executive Officer
/s/ Bruce L. Downey
- --------------------------------------
Bruce L. Downey
(2) Principal Financial Officer and
Principal Accounting Officer
March 4, 2002
/s/ William T. McKee Senior Vice President,
- -------------------------------------- Chief Financial Officer,
William T. McKee Treasurer and Secretary
(3) Other Directors
Vice Chairman of the March 4, 2002
** Board of Directors
- --------------------------------------
Edwin A. Cohen
** Director March 4, 2002
- --------------------------------------
Carole S. Ben-Maimon
President,
** Chief Operating Officer
- -------------------------------------- and Director March 4, 2002
Paul M. Bisaro
** Director March 4, 2002
- --------------------------------------
Robert J. Bolger
Signature Title Date
- --------- ----- ----
** Director March 4, 2002
- --------------------------------------
Harold N. Chefitz
** Director March 4, 2002
- --------------------------------------
Jacob M. Kay
** Director March 4, 2002
- --------------------------------------
Bernard C. Sherman
** Director March 4, 2002
- --------------------------------------
George P. Stephan
- -------------------------------------- Director March 4, 2002
E. Thomas Arington
- -------------------------------------- Director March 4, 2002
Richard R. Frankovic
- --------------------------------------
Peter R. Seaver Director March 4, 2002
** By
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William T. McKee
Attorney-In-Fact
EXHIBIT INDEX
Exhibits
4.1 Composite Restated Certificate of Incorporation of Barr Laboratories,
Inc. (incorporated herein by reference to Barr's Annual Report on Form
10-K for Fiscal Year ended June 30, 1999, filed on August 31, 1999).
4.2 Bylaws of Barr Laboratories, Inc. (incorporated herein by reference to
Barr's Annual Report on Form 10-K for Fiscal Year ended June 30, 1999,
filed on August 31, 1999).
5.1 Opinion of Winston & Strawn regarding the validity of securities to be
issued
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5.1)
24.1 Power of Attorney (incorporated herein by reference to signature page
to Barr's Registration Statement on Form S-4 (333-66986) dated August
6, 2001)
99.1 1986 Stock Option Plan, as amended through February 16, 1994
(incorporated herein by reference to Duramed Pharmaceuticals, Inc.'s
Annual Report on Form-10K for Fiscal Year ended December 31, 1992,
filed on May 26, 1993)
99.2 1988 Stock Option Plan, as amended through July 24, 1998 (incorporated
herein by reference to Duramed Pharmaceuticals, Inc.'s Proxy Statement
relating to the 1993 Annual Meeting of Stockholders, filed on July 27,
1993)
99.3 1991 Stock Option Plan for Non-Employee Directors, as amended through
July 24, 1998 (incorporated herein by reference to Duramed
Pharmaceuticals, Inc.'s Proxy Statement relating to the 1993 Annual
Meeting of Stockholders, filed on July 27, 1993)
99.4 1997 Stock Option Plan (incorporated herein by reference to Duramed
Pharmaceuticals, Inc.'s Proxy Statement relating to the 1997 Annual
Meeting of Stockholders, filed on August 26, 1997)
99.5 2000 Stock Option Plan, as amended through January 19, 2001
(incorporated herein by reference to Duramed Pharmaceuticals, Inc.'s
Proxy Statement relating to the 2000 Annual Meeting of Stockholders,
filed on August 1, 2000)