As filed with the Securities and Exchange Commission on June , 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CHIREX INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3296309
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(Address, including Zip Code, of Principal Executive Offices)
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ChiRex Inc. 1997 Stock Incentive Plan
(Full title of the plan)
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Beth Hecht, Esq.
General Counsel
ChiRex Inc.
300 Atlantic Street
Suite 402
Stamford, Connecticut 06901
(203) 351-2300
(Name, address and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed
Securities Maximum Proposed Maximum
to be Amount to be Offering Price Aggregate Amount of
Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
Common Stock 2,000,000 $15.125 $30,250,000 $8,923.75
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(1) Represents the maximum number of shares that may be acquired under the
ChiRex Inc. Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the average of the high and low prices of the
Common Stock as reported on the New York Stock Exchange on June 25,
1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
by reference herein:
(1) The Registrant's latest Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, filed pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(2) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 1998, filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act.
(3) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (1) above.
(4) The description of the common stock of the Registrant, $.01
par value per share (the "Common Stock"), contained in a Registration
Statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment to this Registration Statement 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 their
respective dates of filing. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article EIGHTH of the Registrant's Certificate of Incorporation (the
"Certificate of Incorporation") provides that no director of the Registrant
shall be personally liable for any monetary damages for any breach of
fiduciary duty as a director, except to the extent that the Delaware
General Corporation Law prohibits the elimination of liability of directors
for breaches of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the
Registrant against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with any litigation or other legal proceeding (other than an
action by or in the right of the Registrant) brought against him by virtue
of his position as a director or officer of the Registrant or another
entity, at the request of the Registrant, if he acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement actually and reasonably
incurred in connection with any action by or in the right of the Registrant
brought against him by virtue of his position as a director or officer of
the Registrant if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Registrant,
except that no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the
Registrant, unless the Court of Chancery of Delaware determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the
foregoing, to the extent that a director or officer has been successful, on
the merits or otherwise,
II-1
including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Registrant against all
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith. In the event the Registrant does not assume the
defense of an action in accordance with the Certificate of Incorporation,
expenses shall be advanced to a director or officer at his request prior to
the final disposition of the matter, provided that he undertakes to repay
the amount advanced if it is ultimately determined that he is not entitled
to indemnification for such expenses.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for
indemnification has not been met and must be made if the director or
officer was successful, on the merits or otherwise, in defense of the
matter. In the event of a determination by the Registrant that the director
or officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification
payment within 60 days after such payment is claimed by such person, such
person is permitted to petition the court to made an independent
determination as to whether such person is entitled to indemnification. As
a condition precedent to the right of indemnification, the director or
officer must give the Registrant notice of the action for which indemnity
is sought, and the Registrant has the right to participate in such action
or assume the defense thereof.
Article NINTH of the Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive, and provides
that in the event that the Delaware General Corporation Law is amended to
expand the indemnification permitted to directors or officers the
Registrant must indemnify those persons to the fullest extent permitted by
such law as so amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request
of the corporation in related capacities against amounts paid and other
expenses actually and reasonably incurred in connection with an action or
proceeding to which he is or is threatened to be made a party by reason of
such position, if such person shall have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the
case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such
person shall have adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Registrant has directors and officers liability insurance for the
benefit of its directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
3.1* Certificate of Incorporation of the Registrant
3.2* By-Laws of the Registrant
4* Specimen Certificate for Shares of Common Stock, $.01 par
value, of the Registrant
5 Opinion of Cravath, Swaine & Moore
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement)
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* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-80831).
II-2
Item 9. 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;
(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; 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 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
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
herein, 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 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, 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 foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
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 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.
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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-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Stamford, State of Connecticut,
on this 17th day of June, 1998.
CHIREX INC.
By: /s/ Michael A. Griffith
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Name: Michael A. Griffith
Title: Vice President and Chief
Financial Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of ChiRex Inc., hereby
severally constitute and appoint Michael A. Griffith our true and lawful
attorney with full power to him to sign for us and in our names in the
capacities indicated below any and all amendments to this Registration
Statement and generally to do all such things in our names and on our
behalf in our capacities as officers and directors of ChiRex Inc. to enable
ChiRex Inc. to comply with the provisions of the Securities Act of 1933 and
all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to this Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
indicated capacities on this 17th day of June, 1998.
Signature Title
/s/ Alan R. Clark
------------------------- President and Chief Operating Officer
Alan R. Clark (Principal Executive Officer)
/s/ Michael A. Griffith Vice President and Chief Financial
------------------------- Officer
Michael A. Griffith (Principal Financial Officer)
------------------------- Director
Dirk Detert
/s/ Elizabeth M. Greetham
------------------------- Director
Elizabeth M. Greetham
/s/ Eric N. Jacobsen
------------------------- Director
Eric N. Jacobsen
/s/ W. Dieter Zander
------------------------- Director
W. Dieter Zander
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EXHIBIT INDEX
Exhibit No. Description
3.1* Certificate of Incorporation of the Registrant
3.2* By-Laws of the Registrant
4* Specimen Certificate for Shares of Common Stock,
$.01 par value, of the Registrant
5 Opinion of Cravath, Swaine & Moore
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement)
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* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-80831).
II-5
Exhibit 23.1
June 23, 1998
ChiRex Inc.
1997 Stock Incentive Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with
the Securities and Exchange Commission relating to 2,000,000 shares of
Common Stock, $.01 par value per share (the "Shares"), of ChiRex,
Inc., a Delaware corporation (the "Company"), to be issued under the
Company's 1997 Stock Incentive Plan (the "Plan").
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed
necessary or appropriate for the purposes of this opinion, including:
(a) the Certificate of Incorporation of the Company; (b) the By-laws
of the Company; (c) resolutions adopted by the Board of Directors of
the Company on February 20, 1997, and the Annual Meeting of
Stockholders on April 17, 1997, and (d) the Registration Statement.
Based on such examination, we are of the opinion that the
Shares have been duly authorized and, when certificates for such
Shares have been duly executed, countersigned by a transfer agent and
registered by a registrar, paid for in accordance with applicable law
and delivered in accordance with the terms of the Plan, such Shares
will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the Registration
Statement.
We are admitted to practice in the State of New York, and we
express no opinion as to matters governed by any laws other than the
laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States of
America.
We are furnishing this opinion to you solely for the
benefit of the Company. This opinion may not be relied upon by any
other person or for any other purpose or used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
/s/ Cravath, Swaine & Moore
ChiRex Inc.
300 Atlantic Street
Suite 402
Stamford, CT 06901
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 registration statement of
our report dated February 4, 1998 incorporated by reference in the
Form 10-K of ChiRex Inc. for the year ended December 31, 1997 and to
all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 19, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of ChiRex Inc. on Form S-8 to register 2,000,000 shares of
common stock of ChiRex Inc. pursuant to the ChiRex Inc. 1997 Stock
Incentive Plan of our report dated February 9, 1996, on our audits of
the consolidated statements of operations, shareholders' equity and
cash flows and the related financial statement schedule, all for the
year ended December 31, 1995, of ChiRex Inc. (formerly SepraChem
Inc.), which reports are included or incorporated by reference in
ChiRex Inc.'s 1997 Annual Report on Form 10-K.
/s/ Coopers & Lybrand, L.L.P.
Boston, Massachusetts
June 23, 1998