AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998.
REGISTRATION NO._________________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VYREX CORPORATION
(Exact name of Registrant as specified in its charter)
NEVADA 88-0271190
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2159 AVENIDA DE LA PLAYA, LA JOLLA, CALIFORNIA 92037
(Address of principal executive offices) (Zip Code)
VYREX CORPORATION
1993 STOCK OPTION PLAN
(Full title of the plan)
CORPORATION TRUST COMPANY OF NEVADA
ONE EAST FIRST STREET, RENO, NEVADA 89501
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (702) 688-3061
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COPIES TO:
FISHER THURBER LLP
DAVID A. FISHER
TIMOTHY J. FITZPATRICK
4225 Executive Square, Suite 1600
La Jolla, CA 92037-1483
Tel. (619) 535-9400
Fax (619) 535-1616
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE (2) PRICE FEE
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Common Stock, par value
$.001 per share . . . . . . . . . 2,875,000 shares $5.63 $16,186,250 $4,774.94
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Vyrex Corporation 1993 Stock
Option Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of consideration
which results in an increase in the number of the Company's outstanding
shares of Common Stock.
(2) Estimated solely for the purpose of computing the amount of the
registration fee under Rule 457(h) of the Securities Act of 1933, as
amended, based on the average of the high and low prices of the Company's
Common Stock as reported on the Nasdaq Stock Market on April 16, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997, filed with the Commission pursuant to Section
13(a) of the Securities Exchange Act of 1934 as amended (the "Exchange
Act").
(b) The Registrant's Quarterly Report on Form 10-QSB for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997.
(c) The Registrant's Proxy Statement dated May 9, 1997 in connection with
the Annual Meeting of Shareholders held on June 27, 1997.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and 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 shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained 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 part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters in connection with the issuance of the securities
offered hereby have been passed upon for the Company by Fisher Thurber LLP, La
Jolla, California. Partners, associates and employees of Fisher Thurber
beneficially own an aggregate of 43,667 shares of the Company's Common Stock,
warrants to purchase 35,916 shares of Common Stock exercisable at $8.00 per
share and an option to purchase 50,000 shares of Common Stock exercisable at
$3.00 per share, all of which were acquired on or before November 1996 for
services rendered.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The statutes, charter provisions, Bylaws, Indemnification Agreement, or
other arrangement under which any controlling person, director or officer of the
Registrant is insured or indemnified in any manner against any liability which
he may incur in his capacity as such, are as follows:
(a) Section 78.751 of the Nevada Corporation Law provides for the
indemnification of officers and directors of the Company against expenses,
judgments, fines and amounts paid in settlement under certain conditions
and subject to certain limitations.
(b) Article VII of the Bylaws of the Company provides that the Company shall
have power to indemnify any person who was or is a party or is threatened
to be made a party to any proceeding by reason of the fact that such person
is or was an agent of the corporation, against expense, judgments, fines,
settlements and other amounts, actually and reasonably incurred in
connection with such proceeding if the person acted in good faith,
reasonably believing the acts to be in the best interest of the
corporation, and acted having no reason to believe the conduct unlawful.
The corporation shall advance the expenses reasonably expected to be
incurred by such agent in defending any such proceeding upon receipt of the
undertaking required by Corporation Code section 78.751(5).
(c) Article Twelve of the Company's Articles of Incorporation provides that the
liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under Nevada law.
Accordingly, a director will not be liable for monetary damages for breach
of duty to the Company or its shareholders in any action brought by or in
the right of the Company. However, a director remains liable to the extent
required by law (i) for the acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, and (ii) for the
payment of distributions in violation of Nevada law. The effect of the
provisions in the Articles of Incorporation is to eliminate the rights of
the Company and its shareholders (through shareholders' derivative suites
on behalf of the Company) to recover monetary damages against a director
for breach of duty as a director, including breaches resulting form
negligent behavior in the context of transactions involving a change of
control of the Company or otherwise, except in the situations described in
clauses (i) and (ii) above. These provisions will not alter the liability
of directors under federal securities laws.
(d) Pursuant to authorization provided under the Articles of Incorporation, the
Company has entered into indemnification agreements with each of its
directors and officers. Generally, the indemnification agreements with
each of its directors and officers. Generally, the indemnification
agreements attempt to provide the maximum protection permitted by Nevada
law as it may be amended from time to time. Moreover, the indemnification
agreements provide for certain additional indemnification. Under such
additional indemnification provisions, however, an individual will not
receive indemnification for judgments, settlements or expenses if he or she
is found liable to the Company (except to the extent the court determines
he or she is fairly and reasonably entitled to indemnity for expenses), for
settlements not approved by the Company or for settlements and expenses if
the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order
to receive an advance of expenses, the individual must repay such advances
upon a final judicial decision that he or she is not entitled to
indemnification. The Company's Bylaws contain a provision of similar
effect relating to advancement of expenses to a director or officer,
subject to an undertaking to repay if it is ultimately determined that
indemnification is unavailable.
(e) There is directors and officers liability insurance now in effect which
insures directors and officers of the Company. Such policy expires on
December 29, 1998 and provides limits of $3 million per policy year.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
Exhibit
Number Exhibits
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4.1 1993 Stock Option Plan(1)
4.2 Form of Incentive Stock Option Agreement(2)
4.3 Form of Nonstatutory Stock Option Agreement(2)
5 Opinion and Consent of Fisher Thurber LLP(2)
23.1 Independent Auditors' Consent - Ernst & Young LLP(2)
23.2 Consent of Fisher Thurber LLP (contained in Exhibit 5)
24 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
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(1) Incorporated by reference to Exhibit 10.22 to Registrant's Form SB-2 filed
on December 1, 1995.
(2) Filed herewith.
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 of 1933, as amended (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) shall 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
herein by reference;
(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; and
(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 Registrant's 1993 Stock Option Plan.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference into this 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 in 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, as amended, 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 La Jolla, State of California, on this 21st day,
April, 1998.
Vyrex Corporation
By: /s/ Sheldon S. Hendler
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Sheldon S. Hendler, Chairman and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sheldon S. Hendler, as his or her true and lawful
attorney-in-fact and agents, with full power of substitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-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
connection therewith as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or their substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES
/s/ Sheldon S. Hendler /s/ Dennis J. Carlo
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Sheldon S. Hendler Dennis J. Carlo
Chief Executive Officer and Director
Director April 21, 1998
April 21, 1998
/s/ Carl M. Lewis /s/ Nolan N. Penn
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Carl M. Lewis Nolan N. Penn
Executive Vice President, Director
Secretary, General Counsel April 21, 1998
and Director
April 21, 1998
/s/ Joyce M. Hendler /s/ Gregory F. Gilbert
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Joyce M. Hendler Gregory F. Gilbert
Director Director
April 21, 1998 April 21, 1998
/s/ Steven J. Kemper /s/ Thomas T. Tierney
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Steven J. Kemper Thomas T. Tierney
Chief Financial Officer Director
April 21, 1998 April 21, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
TO FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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VYREX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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INDEX TO EXHIBITS TO FORM S-8
EXHIBIT
NUMBER DESCRIPTION
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4.1 1993 Stock Option Plan(1)
4.2 Form of Incentive Stock Option Agreement(2)
4.3 Form of Nonstatutory Stock Option Agreement(2)
5 Opinion and Consent of Fisher Thurber LLP(2)
23.1 Independent Auditors' Consent - Ernst & Young LLP(2)
23.2 Consent of Fisher Thurber LLP (contained in Exhibit 5)
24 Power of Attorney. Reference is made to the signature page of
this Registration Statement.
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(1) Incorporated by reference to Exhibit 10.22 to Registrant's Form SB-2
filed on December 1, 1995.
(2) Filed herewith.
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