S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on June 26, 2007
As
filed with the Securities and Exchange Commission on June 25, 2007
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE SECURITIES ACT OF 1933
OPKO HEALTH, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
(State or Other Jurisdiction of Incorporation or Organization)
75-2402409
(I.R.S. Employer Identification No.)
(I.R.S. Employer Identification No.)
4400 Biscayne Blvd, Suite 1500
Miami, Florida 33137
(Address of Principal Executive Offices)
Miami, Florida 33137
(Address of Principal Executive Offices)
Opko Health, Inc. 2007 Equity Incentive Plan
Cytoclonal Pharmaceutics Inc. 2000 Stock Option Plan
Acuity Pharmaceuticals, Inc. 2003 Equity Incentive Plan and Options to Purchase Common Stock
Granted by Froptix Corporation
(Full Title of the Plans)
Cytoclonal Pharmaceutics Inc. 2000 Stock Option Plan
Acuity Pharmaceuticals, Inc. 2003 Equity Incentive Plan and Options to Purchase Common Stock
Granted by Froptix Corporation
(Full Title of the Plans)
Steven D. Rubin
Executive Vice President Administration
4400 Biscayne Blvd, Suite 1500
Miami, Florida 33137
(Name and Address of Agent for Service)
Executive Vice President Administration
4400 Biscayne Blvd, Suite 1500
Miami, Florida 33137
(Name and Address of Agent for Service)
(305) 575-6000
(Telephone Number, Including Area Code, of Agent for Service)
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum | Proposed Maximum | |||||||||||||||
Title of Each Class of Securities | Amount To Be | Offering Price Per | Aggregate Offering | Amount of | ||||||||||||
To Be Registered | Registered (1) | Share | Price | Registration Fee | ||||||||||||
Common Stock, $0.01 par value per share |
50,075,099(2) | $3.86(3) | $193,289,882.14 | $5,934.00 |
(1) | This Registration Statement shall also cover any additional shares of Registrants common stock in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrants receipt of consideration which results in an increase in the number of the outstanding shares of Registrants common stock. | |
(2) | Consist of 35,000,000 shares subject to issuance upon the exercise of stock options outstanding under the Opko Health, Inc. 2007 Equity Incentive Plan, 10,638,221 shares subject to issuance upon the exercise of stock options outstanding under the Acuity Pharmaceuticals, Inc. 2003 Equity Incentive Plan and 4,436,878 shares subject to issuance upon the exercise of stock options outstanding under an agreement entered into by Froptix Corporation. | |
(3) | Calculated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended (the Securities Act), based upon the average of the high and low sales prices per share of the Registrants common stock reported on the American Stock Exchange on June 21, 2007, and the maximum number of shares of common stock currently issuable pursuant to the Opko Health, Inc. 2007 Equity Incentive Plan, the Acuity Pharmaceuticals, Inc. 2003 Equity Incentive Plan and an agreement entered into by Froptix Corporation with one of its founders (the Plans). |
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the document containing the
information required by Part I of this Registration Statement on Form S-8 also
relates to 1,500,000 shares subject to issuance upon the exercise of stock options
outstanding under the Cytoclonal Pharmaceutics Inc. 2000 Stock Option
Plan, which shares were previously registered on Registration Statement on Form S-8 (Registration
No. 333-59490), under the Registrants former name
Cytoclonal Pharmaceutics Inc. This registration statement shall act as a posteffective amendment to that registration statement. The registrant has previously paid a
fee relating to that registration.
INTRODUCTORY STATEMENT
On March 27, 2007, Opko Health, Inc., (Opko or the Registrant) and two of its wholly-owned
subsidiaries, Acuity Pharmaceuticals, Inc. (Acuity) and Froptix Corporation (Froptix), entered
into a Merger Agreement and Plan of Reorganization (the Merger Agreement). Pursuant to the terms
of the Merger Agreement, Acuity and Froptix merged with and into the two wholly-owned subsidiaries
of the Registrant on March 27, 2007, with Acuity and Froptix becoming wholly-owned subsidiaries of
the Registrant.
The Merger Agreement provided that at the effective time of the merger, the terms of each
outstanding unvested option to acquire shares of Acuity and Froptix common stock granted under
outstanding Acuity option plans and Froptix option plans would be converted into an option to
acquire, on the same terms and conditions, a number of shares of Opko common stock in an amount and
at an exercise price based on the formulae set forth in the Merger Agreement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This information will be sent or given to all persons who participate in the Plans as
specified by Rule 428(b)(1) of the Securities Act. This information and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, constitute a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 filed by the Registrant with the Commission pursuant to the Securities and Exchange Act
of 1934, as amended (the Exchange Act):
(a) | The Registrants Annual Report on Form 10-K for the year ended December 31, 2006. | ||
(b) | The Registrants Annual Report on Form 10-K/A for the year ended December 31, 2006. | ||
(c) | The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2007. | ||
(d) | The Companys Proxy Statement on Schedule 14C filed with the Commission on May 16, 2007. | ||
(e) | The Registrants Current Reports on Form 8-K filed on February 9, 2007, March 27, 2007, April 2, 2007, April 13, 2007, April 18, 2007 and May 11, 2007. |
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(f) | The description of the Registrants Common Shares in the Registrants Registration Statement on Form 8-A filed on June 8, 2007, including any amendment or report filed for the purpose of updating such description. |
All other documents filed subsequent to the filing date of this Registration Statement with
the Commission by the Registrant pursuant to Section 13(a), 13(c), 14 or 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 in this Registration Statement
and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this Registration Statement
or any prospectus hereunder to the extent that a statement contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such prior statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement or any
prospectus hereunder except as indicated herein.
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 Ninth of the Registrants Restated Certificate of Incorporation provides that to the
fullest extent permitted by Delaware Law, no director of the Registrant shall be liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 7.1 of the Registrants By-Laws, provides that the Registrant shall indemnify and hold
harmless to the fullest extent permitted by Delaware law, each former, present or future director,
officer, employee or agent of the Registrant, and each person who may serve at the request of the
Registrant as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against all expenses, liability and loss (including attorneys
fees) reasonably incurred by such person if he or she acted in good faith and in a manner he or she
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 or her conduct
was unlawful. The Registrant shall pay the expenses (including attorneys fees) incurred by an
officer or director of the Registrant in defending any proceeding in advance of its final
disposition, upon receipt of an undertaking by the director or officer to
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repay all amounts advanced if it is ultimately determined that such director or officer is not
entitled to be indemnified. The Registrant may advance payment of expenses incurred by former
directors and officers or other employees and agents of the Registrant on such terms and
conditions, as the Registrant deems appropriate.
Section 145 of the General Corporation Law of the State of Delaware sets forth the applicable
terms, conditions and limitations governing the indemnification of officers, directors and other
persons.
In addition, the Registrant maintains officers and directors liability insurance for the
benefit of its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit | ||||
Number | Description | |||
3.1 | Amended and Restated Certificate of Incorporation of Opko
Health Inc., as currently in effect (incorporated by
reference to Exhibit 2.1 to Form 8-A filed June 8, 2007) |
|||
3.2 | Amended and Restated Bylaws of Opko Health Inc., as
currently in effect (incorporated by reference to Exhibit
2.2 to Form 8-A filed June 8, 2007) |
|||
5.1 | Opinion of Akerman Senterfitt |
|||
23.1 | Consent of Rotenberg & Co., LLC |
|||
23.2 | Consent of BDO Seidman, LLP |
|||
23.3 | Consent of KPMG LLP |
|||
23.4 | Consent of Ernst & Young LLP |
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23.5 | Consent of Akerman Senterfitt (contained in Exhibit 5.1) |
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24.1 | Power of Attorney (contained in the signature page hereto) |
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:
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(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 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
Registration Statement; and
(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) of this section do not apply if the
Registration Statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
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 Registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to 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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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 Miami, State of Florida, on
June 25, 2007.
OPKO HEALTH, INC. |
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By: | /s/ Adam Logal | |||
Adam Logal | ||||
Executive Director of Finance, Chief Accounting Officer and Treasurer |
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration Statement and Power of
Attorney have been signed by the following persons in the capacity and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose name appears below hereby constitutes
and appoints Adam Logal and Steven D. Rubin his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his 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 exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures | Title | Date | ||
/s/ Phillip Frost
|
Chairman of the Board Chief Executive Officer (Principal Executive Officer) |
June 25, 2007 | ||
/s/ Rao Uppaluri
|
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
June 25, 2007 | ||
/s/ Steven D. Rubin
|
Director | June 25, 2007 | ||
/s/ Jane H. Hsiao
|
Director | June 25, 2007 | ||
/s/ John A. Paganelli
|
Director | June 25, 2007 | ||
/s/ David A. Eichler
|
Director | June 25, 2007 | ||
/s/ Michael Reich
|
Director | June 25, 2007 | ||
/s/ Robert Baron
|
Director | June 25, 2007 | ||
/s/ Richard A. Lerner
|
Director | June 25, 2007 | ||
/s/ Melvin L. Rubin
|
Director | June 25, 2007 |
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EXHIBIT INDEX
Exhibit | ||||
Number | Description | |||
5.1 | Opinion of Akerman Senterfitt |
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23.1 | Consent of Rotenberg & Co., LLC |
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23.2 | Consent of BDO Seidman, LLP |
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23.3 | Consent of KPMG LLP |
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23.4 | Consent of Ernst & Young LLP |
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23.5 | Consent of Akerman Senterfitt (contained in Exhibit 5.1) |
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24.1 | Power of Attorney (contained in the signature page hereto) |
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