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As filed with the Securities and Exchange Commission on November 22, 1999.
Registration No. 333-_________
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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 of incorporation (IRS Employer
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:
PATRICIA O. LOWRY, ESQ.
TAFT, STETTINIUS & HOLLISTER LLP
1800 FIRSTAR TOWER
425 WALNUT STREET
CINCINNATI, OHIO 45202
__________________
Approximate date of commencement of proposed sale to public: From time
to time after this Registration Statement becomes 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. [ ]
______________
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, 3,000,000 shares $8.50 $25,500,000 $7,089
$.01 par value
per share
================================================================================================================================
<FN>
(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
November 17, 1999.
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
3,000,000 SHARES
DURAMED PHARMACEUTICALS, INC.
COMMON STOCK
This prospectus covers 3,000,000 shares of the common stock of Duramed
Pharmaceuticals, Inc.
Duramed's common stock is listed on the Nasdaq National Market under
the symbol "DRMD." On November __, 1999, the closing price of the common stock
was $_______ per share.
All of the shares of common stock offered by this prospectus are being
sold for the account of the entity named under the caption "Selling
Shareholder." The selling shareholder has advised Duramed 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." Duramed will receive no proceeds from the
sale of the shares.
Duramed is a Delaware corporation. Its principal executive offices are
located at 7155 East Kemper Road, Cincinnati, Ohio 45249 and its telephone
number is (513) 731-9900.
______________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
______________
The date of this prospectus is ____________, 1999.
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TABLE OF CONTENTS
The Company....................................................................3
Selling Shareholder............................................................3
Plan of Distribution...........................................................3
Legal Matters..................................................................5
Experts........................................................................5
Where You Can Find More Information............................................5
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THE COMPANY
Duramed Pharmaceuticals, Inc. currently develops, manufactures and
markets a line of prescription drug products in tablet, capsule and liquid forms
to customers throughout the United States. Products sold by Duramed include
those of its own manufacture and those which it markets under arrangements with
other drug manufacturers. Duramed sells its 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.
SELLING SHAREHOLDER
The selling shareholder identified below provided the following
information to Duramed concerning its beneficial ownership of Duramed common
stock as of the date of this prospectus.
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 This Offering
- ----------------------------- ----------------------- ------------------ -------------------------
Solvay Pharmaceuticals, Inc. 3,000,000 3,000,000 ----
Of the 3,000,000 shares listed above, 1,666,666 shares were purchased
by the selling shareholder in partial exercise of an option granted to the
selling shareholder on October 6, 1999. The selling shareholder has agreed to
purchase the remaining 1,333,334 shares subject to certain conditions, which are
not within its control, including satisfactory completion of all applicable
regulatory requirements, one of which is Hart-Scott-Rodino antitrust review.
After the selling shareholder purchases the remaining shares, Duramed will
create an additional position on its Board of Directors, to be filled by a
nominee designated by the selling shareholder.
Also on October 6, 1999 Duramed and the selling shareholder entered
into an alliance to jointly promote three pharmaceutical products, one of
Duramed's and two of the selling shareholder's. Otherwise, the selling
shareholder does not have, and in the past has not had, any material
relationship with Duramed 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 shareholder named above. As used in this
section, however, "Selling Shareholder" also includes donees and pledgees
selling shares received after the date of this prospectus from the selling
shareholder. All 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.
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Brokerage commissions and similar selling expenses, if any, attributable to the
sale of these shares will be borne by the Selling Shareholder. Sales of shares
may be effected by the Selling Shareholder from time to time in one or more
transactions on The Nasdaq Stock Market, in the over-the-counter market, 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, at market price prevailing at the time of sale or at negotiated prices.
The Selling Shareholder has advised Duramed that it has not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of its shares, nor is any underwriter or
coordinating broker acting in connection with the proposed sale of shares by the
Selling Shareholder.
The Selling Shareholder may sell its shares directly to purchasers or
to or through broker-dealers, which may act as agents or principals.
Broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the Selling Shareholder 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 Shareholder 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 Shareholder against certain
liabilities, including liabilities arising under the Securities Act. The Selling
Shareholder may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of its shares against certain
liabilities, including liabilities arising under the Securities Act.
Because the Selling Shareholder may be deemed to be an "underwriter,"
it will be subject to the prospectus delivery requirements of the Securities
Act. Duramed has informed the Selling Shareholder that the anti-manipulative
provisions of Regulation M promulgated under the Securities Exchange Act of 1934
may apply to its sales in the market.
If Duramed is notified by the 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. This supplement will disclose:
- the names of the Selling Shareholder and the participating
broker-dealer(s);
- the number of shares involved;
- the price at which the shares were sold;
- the commissions paid or discounts or concessions allowed, where
applicable;
- that the broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus; and
- other facts material to the transaction.
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In addition, if Duramed is notified by the Selling Shareholder that a donee or
pledgee intends to sell more than 500 shares, a supplement to this prospectus
will be filed.
LEGAL MATTERS
Taft, Stettinius & Hollister LLP, Cincinnati, Ohio, has passed on the
validity of the shares of Duramed common stock offered by this prospectus.
Timothy E. Hoberg, a partner of Taft, Stettinius & Hollister LLP, is Assistant
Secretary of Duramed. Attorneys in that firm participating in matters relating
to Duramed beneficially own approximately 18,700 shares of Duramed'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, 1998 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report included therein and
incorporated in this prospectus by reference. The consolidated financial
statements and schedule are incorporated in this prospectus 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
Duramed files annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission. These SEC
filings are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You also may read and copy any document filed by Duramed
with the SEC at the SEC's public reference rooms in Washington, D.C., New York,
New York and Chicago, Illinois. Please call the SEC at 1-800- SEC-0330 for
further information on the public reference rooms.
Duramed has filed a Registration Statement on Form S-3 with the SEC
covering the shares of common stock offered by this prospectus. This prospectus
does not contain all of the information set forth in the Registration Statement.
The full Registration Statement is on the SEC's web site and is available at the
SEC's public reference rooms.
You should rely only on the information provided in this prospectus.
No one is authorized to provide you with different information. The shares of
common stock are not being offered in any state where the offer is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of this document.
The SEC allows Duramed to "incorporate by reference" information into
this prospectus, which means that Duramed can disclose important information
about itself to you by referring you
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to another document filed separately with the SEC. The information about Duramed
that is incorporated by reference is considered part of this prospectus, except
for any information superseded by information contained directly in this
prospectus or in later filed documents incorporated by reference in this
prospectus.
This prospectus incorporates by reference the documents listed below
that Duramed has previously filed with the SEC.
DURAMED PHARMACEUTICALS, INC. SEC FILINGS
(FILE NO. 000-15242) PERIOD/AS OF DATE
- ----------------------------------------- ----------------------------------------
Annual Report on Form 10-K/A Year ended December 31, 1998
Quarterly Reports on Form 10-Q Quarters ended March 31, June 30 and
September 30, 1999
Current Reports on Form 8-K March 26, 1999 (filed March 26, 1999),
April 13, 1999 (filed April 13, 1999),
October 6, 1999 (filed October 21, 1999),
October 22, 1999 (filed November 2, 1999)
Descriptions of Duramed's common stock December 11, 1996, January 11, 1989 and
and preferred stock purchase rights in September 1, 1998
Registration Statements on Form 8-A and
8-A/A
Duramed also incorporates by reference all additional documents that it
files with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 between the date of this prospectus and the termination of
the offering made by this prospectus.
You can obtain any of the documents incorporated by reference through
Duramed, the SEC or the SEC's Internet web site as described above. Duramed will
provide without charge to each person, including any beneficial owner, to whom
this prospectus is delivered, upon written or oral request, a copy of any or all
of the information incorporated by reference in this prospectus but not
delivered with this prospectus. Exhibits are not available unless Duramed has
specifically incorporated an exhibit by reference.
You should direct any requests for delivery of such information to
Timothy J. Holt, Senior Vice President, Duramed Pharmaceuticals, Inc., 7155 East
Kemper Road, Cincinnati, Ohio 45249, telephone (513) 731-9900.
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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................................ $ 7,089
Nasdaq National Market listing fee.................. 17,500
Accounting fees and expenses........................ 2,500
Legal fees and expenses............................. 4,000
Printing expenses................................... 250
Miscellaneous....................................... 750
-------
TOTAL..................................... $32,089
=======
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 exhibits listed on the Index to Exhibits on page II-6, following
the signature page, are filed as part of this Registration Statement.
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.
(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
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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 22ND DAY OF NOVEMBER, 1999.
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 22ND DAY OF NOVEMBER, 1999.
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
- ------------------------
Jeffrey T. Arington
/s/ George W. Baughman* Director
- ------------------------
George W. Baughman
/s/ Richard R. Frankovic* Director
- ------------------------
Richard R. Frankovic
- ------------------------ Director
Peter R. Seaver
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- ------------------------------- Director
S. Sundararaman
*Pursuant to Power of Attorney
/s/ Timothy J. Holt
- -------------------------------
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 (a)
4.2 Rights Agreement between Duramed Pharmaceuticals, Inc.
and The Provident Bank as Rights Agent dated as of
August 17, 1988 (b)
4.3 Amendment dated as of August 12, 1998 to Rights
Agreement (c)
4.4 Certificate of Designation, Preferences and Rights of
Series F Preferred Stock (d)
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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(a) Filed as an exhibit to Duramed's Annual Report on Form 10-K for the
year ended December 31, 1988 and incorporated herein by reference.
(b) Filed as an exhibit to Duramed's Current Report on Form 8-K, Date of
Report August 28, 1988, and incorporated herein by reference.
(c) Filed as an exhibit to Duramed's Quarterly Report on Form 10-Q/A for
the quarter ended June 30, 1998 and incorporated herein by reference.
(d) Filed as an exhibit to Duramed's Annual Report on Form 10-K for the
year ended December 31, 1997 and incorporated herein by reference.
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