As filed with the Securities and Exchange Commission on August 17, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Depomed, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
California 94-3229046
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification No.)
Organization)
366 Lakeside Drive, Foster City, California 94404
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(Address of Principal Executive Offices)
Amended and Restated 1995 Stock Option Plan
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(Full Title of the Plan)
John W. Fara
President and Chief Executive Officer
366 Lakeside Drive
Foster City, California 94404
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(Name and Address of Agent For Service)
(650) 513-0990
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(Telephone Number, including Area Code, of Agent For Service)
Copy to:
Stephen C. Ferruolo
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
Telephone: (650) 324-7000
Facsimilce: (650) 324-0638
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered per Share(1) Price Fee
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Common Stock, no par value, issuable 800,000 $ 2.125 $ 1,700,000 $ 473
under Amended and Restated 1995 Stock
Option Plan
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(1) Estimated solely for the purpose of computing the amount of registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
on the average of the high and low prices of the Registrant's Common Stock
reported on the American Stock Exchange on August 12, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation Of Documents By Reference
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated by
reference in this registration statement:
(a) The registrant's latest annual report (Form 10-KSB) filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
Exchange Act), the registrant's latest quarterly report (Form 10-QSB) filed
pursuant to Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
Securities Act), that contains audited financial statements for the registrant's
latest fiscal year for which such statements have been filed;
(b) All other reports filed by the registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report or prospectus referred to in (a) above;
(c) The description of the Common Stock of the registrant contained in the
registrant's registration statement filed under the Exchange Act registering
such Common Stock under Section 12 of the Exchange Act; and
(d) 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 which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Julian N. Stern, the Secretary of the Company, is the owner of 83,333
shares of Common Stock and is the sole stockholder and employee of a
professional corporation that is a partner of Heller Ehrman White & McAuliffe.
ITEM 6. Indemnification of Directors and Officers
Pursuant to Section 204(a) and 317 of the California Corporations Code, as
amended, the registrant has included in its articles of incorporation and bylaws
provisions regarding the indemnification of officers and directors of the
registrant. Article Four of registrant's Amended and Restated Articles of
Incorporation provides as follows:
"The liability of the directors of this corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
This corporation is also authorized, to the fullest extent permissible under
California law, to indemnify its agents (as defined in Section 317 of the
California Corporations Code), whether by bylaw, agreement or otherwise, in
excess of the indemnification expressly permitted by Section 317 and to advance
defense expenses to its agents in connection with such matters as they are
incurred, subject to the limits on such excess idemnification set forth in
Section 204 of the California Corporations Code. If, after the effective date
of this Article, California law is amended in a manner which permits a
corporation to limit the monetary or other liability of its directors or to
authorize indemnification of, or advancement of such defense expense to, its
directors or other persons, in any such case to a greater extent than is
permitted on such effective date, the references in this Article to "California
law" shall to that extent be deemed to refer to California law as so amended."
Section 29 of the registrant's Bylaws, as amended, provides as follows:
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"29. Indemnification of Directors and Officers.
(a) Indemnification. To the fullest extent permissible under California
law, the corporation shall indemnify its directors and officers against all
expenses, judgment, fines, settlement and other amounts actually and reasonably
incurred by them in connection with any proceeding, including an action by or in
the right of the corporation, by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, trustee, employee or agent of another
corporation, or of a partnership, joint venture, trust or other enterprise
(including service with respect to employee benefit plans). To the fullest
extent permissible under California law, expenses incurred by a director or
officer seeking indemnification under this bylaw in defending any proceeding
shall be advanced by the corporation as they are incurred upon receipt by the
corporation of an undertaking by or on behalf of the director or officer to
repay such amount if it shall ultimately be determined that the director or
officer is not entitled to be indemnified by the corporation for those expenses.
If, after the effective date of this bylaw, California law is amended in a
manner which permits the corporation to authorize indemnification of or
advancement of expenses to its directors or officers, in any such case to a
greater extent than is permitted on such effective date, the references in this
bylaw to "California law" shall to that extent be deemed to refer to California
law as so amended. The rights granted by this bylaw are contractual in nature
and, as such, may not be altered with respect to any present or former director
or officer without the written consent of that person.
(b) Procedure. Upon written request to the Board of Directors by a person
seeking indemnification under this bylaw, the Board shall promptly determine in
accordance with Section 317(e) of the California Corporations Code whether the
applicable standard of conduct has been met and, if so, the Board shall
authorize indemnification. If the Board cannot authorize indemnification
because the number of directors who are parties to the proceeding with respect
to which indemnification is sought prevents the formation of a quorum of
directors who are not parties to the proceeding, then, upon written request by
the person seeking indemnification, independent legal counsel (by means of a
written opinion obtained at the corporation's expense) or the corporation's
shareholders shall determine whether the applicable standard of conduct has been
met and, if so, shall authorize indemnification.
(c) Definitions. The term "proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative. The term "expenses" includes, without limitation, attorney's
fees and any expenses of establishing a right to indemnification."
The registrant has entered into indemnification agreements with each of its
current directors and officers pursuant to the foregoing provisions.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
5.1 Opinion of of Heller Ehrman White & McAuliffe
10.1 Amended and Restated 1995 Stock Option Plan
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part of
Exhibit 5.1)
24.1 Power of Attorney (See page II-4)
Item 9. Undertakings
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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 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;
(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
15(d) of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the 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
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, 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 Foster City, State of California, on this 16th day of
August, 1999.
DEPOMED, INC.
By: /s/ John W. Fara
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John W. Fara
President and Chief Executive Officer
POWER OF ATTORNEY TO SIGN AMENDMENT
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint John W. Fara and John F. Hamilton with
full power of substitution, such person's true and lawful attorneys-in-fact and
agents for such person in such person's name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as he or such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
Signature Capacity Date
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/s/ John W. Fara, Ph.D President, Chief Executive Officer August 16, 1999
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John W. Fara, Ph.D. and Director (Principal Executive
Officer)
/s/ John W. Shell, Ph.D. Chairman of the Board and Chief Scientific August 16, 1999
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John W. Shell, Ph.D. Officer
/s/ John N. Shell Vice President, Operations and Director August 16, 1999
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John N. Shell
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/s/ John F. Hamilton Vice President, Finance and Chief August 16, 1999
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John F. Hamilton Financial Officer (Principal
Financial and Accounting Officer)
/s/ G. Steven Burrill Director August 16, 1999
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G. Steven Burrill
/s/ W. Leigh Thompson, M.D. Director August 16, 1999
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W. Leigh Thompson, M.D.
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Index to Exhibits
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Item
No. Description of Item
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5.1 Opinion of Heller Ehrman White & McAuliffe
10.1 Amended and Restated 1995 Stock Option Plan
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part of Exhibit 5.1)
24.1 Power of Attorney (See page II-4)