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As filed with the Securities and Exchange Commission on June 13, 1997.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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DURAMED PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2590026
(State or other jurisdiction of incorporation or organization) (IRS Employer 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)
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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:
TIMOTHY E. HOBERG
TAFT, STETTINIUS & HOLLISTER
1800 STAR BANK CENTER
425 WALNUT STREET
CINCINNATI, OHIO 45202
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Approximate date of commencement of proposed sale to public: From time
to time 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. [ ]
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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
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. [ ]
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CALCULATION OF REGISTRATION FEE
================================================================================================================================
Title of Amount to be Proposed Proposed Amount of
securities to be registered maximum maximum registration fee
registered offering price aggregate
per unit (1) offering price(1)
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Common Stock, 2,976,246 shares $4.25 $12,649,045 $3,833
$.01 par value
per share
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(1) 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 June 10, 1997.
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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PROSPECTUS
2,976,246 SHARES
DURAMED PHARMACEUTICALS, INC.
COMMON STOCK
This Prospectus relates to up to 2,976,246 shares of the common stock,
$.01 par value (the "Common Stock"), of Duramed Pharmaceuticals, Inc. (the
"Company").
On June __, 1997, the closing price of the Common Stock as reported on
the Nasdaq National Market was $______ per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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All of the shares of Common Stock offered hereby (the "Shares") are
being sold for the accounts of and by the persons named under the caption
"Selling Shareholders." The Selling Shareholders have advised the Company that
these Shares may be sold from time to time on The Nasdaq Stock Market, in the
over-the-counter market or in negotiated transactions, in each case at prices
satisfactory to the seller. See "Plan of Distribution." The Company will not
receive any proceeds from the sale of the Shares.
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The date of this Prospectus is June __, 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and may be available at the Commission's
Regional Offices at Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661 and Suite 1300, 7 World Trade Center, New York, New
York 10048. Copies of such materials may be obtained from the Public Reference
Section, Securities and Exchange Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Commission also maintains an
Internet web site at http://www.sec.gov that contains reports, proxy statements
and other information filed electronically by the Company. This Prospectus does
not contain all the information set forth in the Registration Statement filed
by the Company with respect to the offering made hereby. Copies of the
Registration Statement are available from the Commission.
The Company's Common Stock is quoted on the Nasdaq National Market and
reports and other information concerning the Company also may be inspected and
copied at the offices of The Nasdaq Stock Market, Inc., 9513 Key West Avenue,
Rockville, Maryland 20850.
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No person has been authorized to give any information or to make on
behalf of the Company or the Selling Shareholders any representations, other
than those contained in this Prospectus, in connection with the offer made
hereby, and, if given or made, any such other information or representation
must not be relied upon as having been authorized by the Company or the Selling
Shareholders. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any security other than the securities offered
hereby, or an offer to sell or solicitation of an offer to buy such securities
in any jurisdiction in which such offer or solicitation is not qualified or to
any person to whom such offer or solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents are incorporated by reference herein:
1. The Company's annual report on Form 10-K/A for the year ended
December 31, 1996;
2. The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1997; and
3. The descriptions of the Company's Common Stock and related
Preferred Stock Purchase Rights contained in the Company's Forms
8-A dated December 11, 1986 and January 11, 1989, including any
amendments or reports filed for the purpose of updating such
descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this Prospectus and prior to the termination of the offering made hereunder
shall be deemed to be incorporated herein by reference and made a part hereof
from the date of filing of such material. Any statement
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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
Prospectus 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 Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information incorporated
by reference herein (not including exhibits unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates). Any request for delivery of such information should
be directed to Mr. Timothy J. Holt, Senior Vice President-Finance and
Administration, Duramed Pharmaceuticals, Inc., 7155 East Kemper Road,
Cincinnati, Ohio 45249; telephone (513) 731-9900.
THE COMPANY
Duramed Pharmaceuticals, Inc. currently manufactures and sells a line
of prescription generic drug products in tablet, capsule and liquid forms to
customers throughout the United States. Products sold by the Company include
those of its own manufacture and those which it markets under certain
arrangements with other drug manufacturers. The Company sells its products to
drug wholesalers, private label distributors, drug store chains, health
maintenance organizations, hospitals, nursing homes, retiree organizations,
mail order distributors, other drug manufacturers, mass merchandisers and
governmental agencies.
Duramed is a Delaware corporation formed in 1982. The address of the
principal executive offices of the Company is 7155 East Kemper Road,
Cincinnati, Ohio 45249 and its telephone number is (513) 731-9900.
USE OF PROCEEDS
The Company will receive none of the proceeds from the sale of the
Shares by the Selling Shareholders.
SELLING SHAREHOLDERS
The following information, regarding the number of shares of Common
Stock beneficially owned by the persons listed below as the Selling
Shareholders (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 the Company by the Selling
Shareholders.
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Shares of
Shares of Common Stock
Shares of Common Common Stock to Be Owned
Name of Selling Stock Beneficially to Be After Completion of
Shareholder Owned Offered Hereby This Offering
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Drakefield Corporation (1) 1,182,498 1,182,498 ---
Shepherd Investments 591,249 591,249 ---
International Ltd. (1)
Stark International (1) 591,249 591,249 ---
Stockwell Corporation SA (1) 591,249 591,249 ---
Harlan Kleiman (2) 14,800 14,800 ---
Robert Schacter (2) 4,200 4,200 ---
Steve Lamar (2) 1,100 600 500*
Tom Griesel (2) 400 400 ---
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* Less than 1 percent.
(1) The number of shares shown in the column captioned "Shares of Common
Stock to Be Offered Hereby" for each holder identified by this note
(1) represents the holder's pro rata portion of up to 2,956,246 shares
of Common Stock which may be acquired upon conversion of 100,000
shares of the Company's 5% Cumulative Convertible Preferred Stock,
Series E (the "Series E Shares"). Series E Shares are convertible to
shares of Common Stock, at the option of a holder, at 18% below the
average closing bid price of the Common Stock over the 10-day trading
period ending on the day prior to a holder's date of conversion (the
"Conversion Price"), except that the Conversion Price may not be less
than $1.64 or more than $4.17 and the Company is not required to issue
more than an aggregate of 2,956,246 shares of Common Stock to all
holders of Series E Shares as a result of conversions. Shares of
Common Stock generally will be issued upon conversion on a ratable
basis. Depending upon the timing of any holder's conversion, and the
holder's applicable Conversion Price, however, the number of shares of
Common Stock acquired and offered by that holder could be less or more
than the number indicated.
(2) Shoreline Pacific Institutional Finance, the Institutional Division of
Financial West Group ("Shoreline Pacific"), acted as placement agent
for the Series E Shares and, in that connection, received a commission
as well as warrants to purchase 20,000 shares of Common Stock (the
"Warrants"). Shoreline Pacific subsequently assigned the Warrants to
these holders. The number of shares shown in the column captioned
"Shares of Common Stock to Be Offered Hereby" for each holder
represents shares issuable upon exercise of the Warrants. During 1995
and 1996, Shoreline Pacific also acted as placement agent for the
Company's Series C and Series D Cumulative Convertible Preferred Stock.
Except as described above, none of the Selling Shareholders has, or in
the past has had, any position, office or relationship with the Company (other
than as a security holder) or any of its affiliates.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholders
or their pledgees or donees. Such sales may be made on The Nasdaq Stock Market,
in the over-the-counter market or in negotiated transactions, at prices and on
terms then prevailing or at prices related to the then current market price or
at negotiated prices. The Shares may be sold by means of (a) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account
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pursuant to this Prospectus and/or (b) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers will receive commissions
or discounts from the Selling Shareholders in amounts to be negotiated
immediately prior to the sale, which amounts will not be greater than that
normally paid in connection with ordinary trading transactions.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon
for the Company by Taft, Stettinius & Hollister, 1800 Star Bank Center,
Cincinnati, Ohio 45202. Timothy E. Hoberg, a partner of Taft, Stettinius &
Hollister, is Assistant Secretary of the Company. Partners and associates of
that firm beneficially own approximately 26,000 shares of the Company's Common
Stock.
EXPERTS
The consolidated financial statements and schedule of Duramed
Pharmaceuticals, Inc. appearing in Duramed's Annual Report, as amended (Form
10-K/A) for the year ended December 31, 1996 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.
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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................................ $ 3,833
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..................................... $32,833
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All of the above expenses other than the SEC registration fee and the
Nasdaq listing fee are estimates. The Company 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 Designation, Preferences and Rights of Series A Preferred
Stock*
4.2 Certificate of Designation, Preferences and Rights of Series E 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 Annual Report on Form
10-K for the year ended December 31, 1988 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;
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.
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(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 12TH DAY OF JUNE, 1997.
DURAMED PHARMACEUTICALS, INC.
BY: /s/ E. Thomas Arington
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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 12TH DAY OF JUNE, 1997.
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/ George W. Baughman* Director
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George W. Baughman
/s/ Derek G. Layton* President, Duramed Europe, Ltd. and Director
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Derek G. Layton
/s/ Stanley L. Morgan* Director
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Stanley L. Morgan
/s/ S. Sundararaman* Director and Secretary
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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 Designation, Preferences and
Rights of Series A Preferred Stock*
4.2 Certificate of Designation, Preferences and Rights of Series E
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 Annual Report on Form 10-K for
the year ended December 31, 1988 and incorporated herein by reference.