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As filed with the Securities and Exchange Commission on June 2, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DURAMED PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2590026
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
7155 EAST KEMPER ROAD
CINCINNATI, OHIO 45249
(513) 731-9900
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
E. THOMAS ARINGTON
DURAMED PHARMACEUTICALS, INC.
7155 EAST KEMPER ROAD
CINCINNATI, OHIO 45249
(513) 731-9900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
LAWRENCE A. GLASSMANN
SENIOR VICE PRESIDENT & GENERAL COUNSEL
DURAMED PHARMACEUTICALS, INC.
7155 E. KEMPER ROAD
CINCINNATI, OHIO 45249
Approximate date of commencement of proposed sale to public: From time
to time as the selling stockholders shall elect to commence sales to the public
after this Registration Statement shall become effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
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Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _________________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per aggregate offering registration fee
unit (2) price (2)
Common Stock, $.01 par 3,515,092 shares $5.17185 $18,179,529 $4,800
value per share
================================================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may become issuable as a result of
any stock splits, stock dividends or antidilution provisions.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and based on the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
May 25, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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DURAMED PHARMACEUTICALS, INC.
3,515,092 SHARES OF COMMON STOCK
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These shares of common stock are being sold by the selling shareholders
listed under the caption "Selling Shareholders" on page __. All of the shares of
common stock covered by this offering are shares that may be issued upon
conversion of convertible preferred shares, exercise of warrants and payment of
dividends on the convertible preferred shares. The selling shareholders may
determine the prices at which they will sell the shares, which may be market
prices prevailing at the time of sale or some other price. Duramed will not
receive any part of the proceeds from the sale. See "Plan of Distribution."
Duramed's common stock is listed on the Nasdaq National Market under
the symbol "DRMD." On June ___, 2000, the reported last sales price of the
common stock on the Nasdaq National Market was $_______ per share.
Duramed's principal executive offices are located at 7155 East Kemper
Road, Cincinnati, Ohio 45249. Our telephone number is (513) 731-9900.
--------------
THE SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SEC OR ANY STATE SECURITIES COMMISSION NOR HAVE
THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS
ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is June __, 2000
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TABLE OF CONTENTS
Section Page
- ------------------
The Company 5
Use of Proceeds 5
Selling Shareholders 6
Plan of Distribution 7
Legal Matters 9
Experts 9
Where You Can Find More Information 9
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THE COMPANY
We currently develop, manufacture and market a line of prescription
drug products in tablet, capsule and liquid forms to customers throughout the
United States. Products sold by us include those of our own manufacture and
those which we market under arrangements with other drug manufacturers. We sell
our products to drug store chains, drug wholesalers, private label distributors,
health maintenance organizations, hospitals, nursing homes, retiree
organizations, mail order distributors, other drug manufacturers, mass
merchandisers and governmental agencies.
USE OF PROCEEDS
We will receive none of the proceeds from the sale of the shares by the
selling shareholders.
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SELLING SHAREHOLDERS
The following information, regarding the number of shares of common
stock underlying convertible stock/warrants owned by the persons listed below as
the selling shareholders and the number of shares of the common stock being
offered for the account of each selling shareholder pursuant to this prospectus,
has been provided to us by the selling shareholders. Except as set forth below,
the selling shareholders do not beneficially own any shares of Duramed common
stock.
=================================================================================================================
Name of Selling Shareholder Shares of Common Stock Shares of Common Stock to Shares of Common Stock to
Underlying Convertible Be Offered Hereby Be Owned After Completion
Stock/Warrants of This Offering
- -----------------------------------------------------------------------------------------------------------------
BayStar Capital, 2,380,000 2,380,000 0
L.P.(1)(2)
- -----------------------------------------------------------------------------------------------------------------
BayStar International 1,020,000 1,020,000 0
Ltd.(1)(2)
Banc of America
Commercial Finance 115,092 115,092 0
Corporation(3)
=================================================================================================================
(1) The number of shares shown in the column captioned "Shares of Common
Stock Underlying Convertible Stock/Warrants" for each holder
represents the holder's pro rata portion of (a) up to 1,976,286
shares of common stock which may be acquired upon conversion of
100,000 shares of Duramed's 5% Cumulative Convertible Preferred
Stock, Series G (the "Series G Shares") based upon a conversion price
of $5.06; (b) up to 500,000 shares of common stock which may be
acquired upon exercise of warrants issued to the holders of Series G
Shares (the "Warrants") based upon an exercise price of $5.50; and
(c) up to 923,714 shares of common stock which may be issued to
holders of the Series G Shares in payment of dividends on the Series
G Shares.
The Series G Shares are convertible into shares of common stock, at
the option of the holder, at a conversion price of $5.06 per share
until May 12, 2004 (subject to extension under certain
circumstances). In no event shall a selling shareholder be entitled
to convert Series G Shares or exercise the Warrants in excess of that
number of Series G Shares or Warrants which upon giving effect to
such conversion or exercise would cause the aggregate number of
shares of common stock beneficially owned by the selling shareholder
and its affiliates to exceed 4.9% of the outstanding shares of common
stock following such conversion or exercise.
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The Warrants allow their holders to purchase shares of common stock
on or before May 12, 2005 at an initial purchase price of $5.50 per
share, subject to adjustment.
The Series G Shares accrue a dividend at the rate of 5% per annum on
the stated value of $100.00 per Series G Share. Dividend payments may
be made in cash or, at the option of Duramed's Board of Directors, by
issuing shares of common stock. If the Board elects to issue shares
in lieu of a cash dividend, the number of shares issued will equal
the aggregate cash dividend divided by 90% of the average closing bid
prices of the common stock for the ten trading days immediately
preceding the payment date. Under an agreement between Duramed and
the holders of the Series G Shares, Duramed has agreed to register
923,714 shares for issuance in lieu of cash dividends. Depending on
whether the Board of Directors elects to issue shares of common stock
in lieu of cash dividends, and the actual average closing bid prices
used for calculating the number of shares issued, the number of
shares of common stock acquired and offered by a holder could be less
or more than the number indicated.
(2) Represents for BayStar Capital, L.P. (a) up to 1,383,400 shares of
common stock which may be acquired upon conversion of the Series G
Shares; (b) up to 350,000 shares of common stock which may be
acquired upon exercise of the Warrants; and (c) up to 646,600 shares
of common stock which may be issued in payment of dividends on the
Series G Shares. Represents for BayStar International Ltd. (a) up to
592,886 shares of common stock which may be acquired upon conversion
of the Series G Shares; (b) up to 150,000 shares of common stock
which may be acquired upon exercise of the Warrants; and (c) up to
277,114 shares of common stock which may be issued in payment of
dividends on the Series G Shares.
(3) The number of shares shown in the column captioned "Shares of Common
Stock Underlying Convertible Stock/Warrants" for Banc of America
Commercial Finance Corporation ("BACFC") represents up to 115,092
shares of common stock which may be acquired upon exercise of
warrants held by BACFC. BACFC is Duramed's principal lender. These
warrants were granted in conjunction with an amendment to a
financing agreement with BACFC and allow BACFC to purchase 57,986
shares of common stock at a purchase price of $12.131 per share and
57,106 shares of common stock at a purchase price of $8.668 per
share on or before July 31, 2009.
Except as described above, none of the selling shareholders has, or in
the past has had, any position, office or relationship with Duramed (other than
as a security holder) or any of its affiliates.
PLAN OF DISTRIBUTION
Duramed is registering the shares of common stock offered by this
prospectus on behalf of the selling shareholders named above. As used in this
section, however, "Selling Shareholders" also includes donees, pledgees,
transferees or other successors-in-interest selling shares received after the
date of this prospectus from a Selling Shareholder as a gift, pledge,
partnership distribution or other non-sale related transfer. All
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costs, expenses and fees in connection with the registration of the shares of
Duramed common stock offered by this prospectus are being borne by Duramed.
Brokerage commissions and similar selling expenses, if any, attributable to the
sale of these shares will be borne by the Selling Shareholders. Sales of shares
may be effected by Selling Shareholders from time to time in one or more
transactions on the Nasdaq Stock Market, in the over-the-counter market, block
trades, in negotiated transactions, through put or call options transactions
relating to the shares, through short sales of shares, or by a combination of
these methods of sale (as well as others), at market prices prevailing at the
time of sale, at negotiated prices, or such other price as the Selling
Shareholders determine from time to time. The Selling Shareholders have advised
us that they have not entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the sale of their
shares, nor is any underwriter or coordinating broker acting in connection with
the proposed sale of shares by the Selling Shareholders.
The Selling Shareholders may sell shares directly to purchasers or to
or through broker-dealers, which may act as agents or principals, or other types
of transactions. Broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Shareholders and/or the
purchasers of shares for whom the broker-dealers act as agents or to whom they
sell as principal or both. As to a particular broker-dealer, this compensation
might be in excess of customary commissions.
The Selling Shareholders and any broker-dealers that act in connection
with the sale of the shares of Duramed common stock offered by this prospectus
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933. Any commissions received by these broker-dealers and any
profit on the resale of the shares sold by them while acting as principals may
be deemed to be underwriting discounts or commissions under the Securities Act.
Duramed has agreed to indemnify the Selling Shareholders against certain
liabilities, including liabilities arising under the Securities Act. The Selling
Shareholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of shares against certain
liabilities, including liabilities arising under the Securities Act.
Because the Selling Shareholders may be deemed to be "underwriters",
they will be subject to prospectus delivery requirements of the Securities Act.
Duramed has informed the Selling Shareholders that the antimanipulative
provisions of Regulation M promulgated under the Securities Exchange Act of 1934
may apply to their sales in the market.
If Duramed is notified by any Selling Shareholder that a material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act. In addition, Duramed will file a supplement to this prospectus
if Duramed is notified by any Selling Shareholder that a donee, pledgee,
transferee or other successor-in-interest intends to sell a sufficient number of
shares that requires a supplement to this prospectus.
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LEGAL MATTERS
The validity of the common stock offered hereby has been passed upon
for Duramed by Lawrence A. Glassmann, its Senior Vice President and General
Counsel. Mr. Glassmann holds employee stock options to purchase Duramed's common
stock.
EXPERTS
The consolidated financial statements and schedule of Duramed
Pharmaceuticals, Inc. appearing in Duramed's Annual Report (Form 10-K) for the
year ended December 31, 1999 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, NY and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public at the
SEC's web site at http://www.sec.gov.
The SEC allows us to incorporate by reference the information we file
with it, which means we can disclose important information to you by referring
to those documents. The information incorporated by reference is considered to
be a part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of
1934 until the Selling Shareholders sell all of their shares. This prospectus is
part of a registration statement we filed with the SEC (Registration No.
333_______).
+ Annual Report on Form 10-K for the fiscal year ended December
31, 1999;
+ Quarterly Report on Form 10-Q for the quarter ended March 31,
2000;
+ Current Reports on Form 8-K dated January 31, 2000 and March
9, 2000; and
+ The description of our common stock and preferred stock
purchase rights contained in our registration statements on
Form 8-A and 8-A/A, dated December 11, 1986, January 11, 1989
and September 1, 1998, as amended from time to time.
You may request a copy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address and
phone number:
Chief Financial Officer
Duramed Pharmaceuticals, Inc.
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7155 East Kemper Road
Cincinnati, Ohio 45249
# (513) 731-9900
You should rely on information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. The Selling Shareholders will not make an offer
of these shares in any state where the offer is not permitted. You should not
assume that the information in the prospectus or any supplement is accurate as
of any date other than the date on the front of these documents.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being registered
hereby:
SEC registration fee............... $4,800
Nasdaq National Market listing fee. 17,500
Accounting fees and expenses....... 2,500
Legal fees and expenses............ 7,500
Printing expenses.................. 500
Miscellaneous...................... 1,000
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TOTAL..................... $33,800
All of the above expenses other than the SEC registration fee and the
Nasdaq listing fee are estimates. Duramed has agreed to pay all of these
expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
allows indemnification by the Registrant to any person made or threatened to be
made a party to any proceedings, other than a proceeding by or in the right of
the Registrant, by reason of the fact that such person is or was a director,
officer, employee or agent of the Registrant, or is or was serving at the
request of the Registrant in a similar capacity with another corporation or
other entity, against expenses, including judgments and fines, if that person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Registrant and, with respect to criminal actions,
in which that person has no reasonable cause to believe that such person's
conduct was unlawful. Similar provisions apply to actions brought by or in the
right of the Registrant, except that no indemnification shall be made in such
cases when the person shall have been adjudged to be liable to the Registrant
unless determined otherwise by the court in which the action was brought.
Indemnifications are to be made by a majority vote of directors who are not
parties to the action or the written opinion of independent counsel or by the
stockholders or by the court. Section 145 also authorizes the Registrant to
purchase insurance against such liabilities.
The Registrant's Certificate of Incorporation provides that the
Registrant shall provide indemnification to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware.
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ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement.
Exhibit No.
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4.1 Certificate of Designations of 5% Cumulative Convertible
Series G Preferred Stock*
5 Opinion of Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney
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* Filed as an exhibit to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2000 and
incorporated herein by reference.
ITEM 17. 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. 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 Commission 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;
(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.
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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
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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.
*(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 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 pursuant to the foregoing provisions, 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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* Paragraph references correspond to those of Item 512 of Regulation S-K.
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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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN CINCINNATI, OHIO, AS OF THE 2ND DAY OF JUNE, 2000
DURAMED PHARMACEUTICALS, INC.
BY: /s/ E. Thomas Arington
-------------------------
E. Thomas Arington
Chairman of the Board,
President and Chief
Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AS OF THE 2ND DAY OF JUNE, 2000.
SIGNATURE TITLE
--------- -----
/s/ E. Thomas Arington Chairman of the Board, President and
- -------------------------------- Chief Executive Officer
E. Thomas Arington (principal executive officer)
/s/ Timothy J. Holt Senior Vice President, Finance and
- -------------------------------- Administration and Treasurer
Timothy J. Holt (principal financial and accounting officer)
/s/ Jeffrey T. Arington* Director
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Jeffrey T. Arington
/s/ George W. Baughman* Director
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George W. Baughman
/s/ Richard R. Frankovic* Director
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Richard R. Frankovic
/s/ Peter R. Seaver* Director
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Peter R. Seaver
/s/ S. Sundararaman* Director
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S. Sundararaman
*Pursuant to Power of Attorney
/s/ Timothy J. Holt
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Timothy J. Holt
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit No Description
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4.1 Certificate of Designations of 5% Cumulative
Convertible Series G Preferred Stock*
5 Opinion of Counsel
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney
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* Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000 and incorporated herein by reference.
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