sv8pos
As filed with the Securities and Exchange Commission on April 15, 2009
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Registration No. 333-150253 |
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Registration No. 333-144221 |
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Registration No. 333-125743 |
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Registration No. 333-108716 |
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Registration No. 333-38094 |
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Registration No. 333-84183 |
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Registration No. 333-83089 |
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
To
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AVANIR PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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33-0314804 |
(State or Other Jurisdiction
of Incorporation or Organization)
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(I.R.S. Employer Identification No.) |
101 Enterprise, Suite 300
Aliso Viejo, California 92656
(Address of Principal Executive Offices)
Amended and Restated 1994 Stock Option Plan*
Amended and Restated 1998 Stock Option Plan*
Amended and Restated 2000 Stock Option Plan*
Amended and Restated 2003 Equity Incentive Plan*
Amended and Restated 2005 Equity Incentive Plan*
(Full Title of the Plans)
* See explanatory note on following page
Keith Katkin
President and Chief Executive Officer
101 Enterprise, Suite 300
Aliso Viejo, California 92656
Telephone: (949) 389-6700
Facsimile: (949) 643-6820
(Name and Address of Agent For Service)
Copy to:
Ryan A. Murr
Goodwin Procter LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Telephone: (415) 733-6000
Facsimile: (415) 677-9041
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company þ |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Title of Securities |
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to be |
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Offering Price |
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Aggregate |
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Registration |
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to be Registered |
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Registered |
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per Share |
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Offering Price |
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Fee |
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See below (1) |
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N/A |
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N/A |
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N/A |
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N/A |
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(1) The Registrant is not registering additional securities. Registration fees were originally
paid by the Registrants predecessor-in-interest upon filing of the original registration
statements on Form S-8 (File Nos. 333-83089, 333-84183, 333-38094, 333-108716, 333-125743,
333-144221 and 333-150253). Consequently, no additional registration fees are required with respect
to the filing of this Post-Effective Amendment No. 1.
This Post-Effective Amendment No. 1 shall become effective upon filing in accordance with Rule 462
under the Securities Act.
TABLE OF CONTENTS
EXPLANATORY NOTE
Reincorporation; Assumption of Registration Statements
Avanir Pharmaceuticals, Inc., a Delaware corporation, (Avanir Delaware or the Registrant),
as successor to Avanir Pharmaceuticals, a California corporation (Avanir California), is filing
this Post-Effective Amendment No. 1 to registration statements on Form S-8, File Nos. 333-83089,
333-84183, 333-38094, 333-108716, 333-125743, 333-144221 and 333-150253 (the Registration
Statements), pursuant to Rule 414 promulgated under the Securities Act of 1933, as amended (the
Securities Act), solely to update the Registration Statements as a result of the Registrants
reincorporation in the State of Delaware from the State of California (the Reincorporation).
The Reincorporation was completed on March 23, 2009 and was effected through a merger of
Avanir California with and into Avanir Delaware, a wholly-owned subsidiary of Avanir California,
with Avanir Delaware remaining as the surviving entity and thereby acquiring all of the assets and
assuming all of the liabilities and obligations of Avanir California. The Reincorporation was
approved by the shareholders of Avanir California at the annual meeting of shareholders held on
February 19, 2009 for which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the Exchange Act).
In connection with the Reincorporation, Avanir Delaware assumed the Avanir California Amended
and Restated 1994 Stock Option Plan, Amended and Restated 1998 Stock Option Plan, Amended and
Restated 2000 Stock Option Plan, Amended and Restated 2003 Equity Incentive Plan and Amended and
Restated 2005 Equity Incentive Plan (collectively, the Plans) and all of the outstanding options
and equity awards under the Plans. At the effective time of the Reincorporation, each outstanding
option to purchase shares of Avanir California common stock was converted into an option to
purchase the same number of shares of Avanir Delaware common stock, with no changes in the option
exercise price or other terms and conditions of such options.
In accordance with paragraph (d) of Rule 414 of the Securities Act, except as modified by this
Post-Effective Amendment No. 1, the Registrant, as successor issuer to Avanir California pursuant
to Rule 12g-3 promulgated under the Exchange Act, hereby expressly adopts the Registration
Statements as its own registration statements for all purposes of the Securities Act and the
Exchange Act, as updated by subsequent filings under the Exchange Act, including, but not limited
to, Avanir Californias most recent annual report on Form 10-K and Avanir Delawares description of
the common stock as set forth on Form 8-A/A. The applicable registration fees were paid at the
time of the original filings of the Registration Statements.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with or furnished to the Securities and
Exchange Commission (the Commission) by the Registrant or the predecessor California corporation
(the Predecessor Registrant), are incorporated herein by reference and made a part hereof:
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The Predecessor Registrants Annual Report on Form 10-K for the year ended September 30,
2008, as amended; |
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The Predecessor Registrants Definitive Proxy Statement on Schedule 14A filed with the
Commission on January 9, 2009; |
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The Predecessor Registrants Quarterly Report on Form 10-Q for the quarter ended
December 31, 2008; |
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The Predecessor Registrants Current Reports on Form 8-K filed with the Commission on
November 12, 2008 and February 25, 2009 and the registrants Current Reports on Form 8-K
filed with the Commission on March 25, 2009 and April 2, 2009; and |
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The description of the common stock of the Registrant contained in the Registrants
registration statement on Form 8-A/A (File No. 001-15803) filed on March 25, 2009,
including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the effective date of this Registration Statement, prior to the filing
of a post-effective amendment to this Registration Statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for 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 to constitute a
part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Registrants Certificate of Incorporation (the Certificate) provides that, to the extent
permitted by applicable law, the Registrants directors shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as directors of
the Registrant. The Certificate eliminates the personal liability of directors to the fullest
extent permitted by the Delaware General Corporation Law and, together with the Registrants
Bylaws, provides that the Registrant shall fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact that such person
is or was a director or officer of the Registrant, or is or was serving at the request of the
Registrant as a director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding. The Registrant has also obtained liability insurance for its
officers and directors and has assumed indemnification agreements that the predecessor California
corporation had entered into with its directors and officers.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit |
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No. |
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Description |
4.1
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Form of Common Stock Certificate (1) |
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5.1
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Opinion of Goodwin Procter LLP |
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23.1
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Consent of KMJ Corbin & Company LLP |
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23.2
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Consent of Goodwin Procter LLP (filed as a part of Exhibit 5.1) |
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24.1
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Power of attorney (set forth on signature page) |
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99.1
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Amended and Restated 1994 Stock Option Plan (2) |
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99.2
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Amended and Restated 1998 Stock Option Plan (2) |
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99.3
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Amended and Restated 2000 Stock Option Plan (3) |
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99.4
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Amended and Restated 2003 Equity Incentive Plan (3) |
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99.5
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Form of Non-Qualified Stock Option Award Notice for use with 2003 Equity Incentive Plan (3) |
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99.6
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Form of Restricted Stock Unit Grant Notice for use with 2003 Equity Incentive Plan (3) |
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99.7
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Form of Restricted Stock Grant Notice for use with 2003 Equity Incentive Plan (3) |
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99.8
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Amended and Restated 2005 Equity Incentive Plan (4) |
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99.9
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Form of Stock Option Agreement for use with 2005 Equity Incentive Plan (5) |
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99.10
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Form of Restricted Stock Unit Agreement for use with 2005 Equity Incentive Plan (6) |
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99.11
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Form of Restricted Stock Agreement for use with 2005 Equity Incentive Plan (6) |
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(1) |
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Filed as an exhibit to the registrants Registration Statement on Form 8-A/A, filed March 25,
2009 and incorporated herein by reference. |
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(2) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 21, 2001 and incorporated herein by reference. |
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(3) |
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Filed as an exhibit to the Predecessor Registrants Quarterly Report on Form 10-Q, filed May
14, 2003 and incorporated herein by reference. |
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(4) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 14, 2005 and incorporated herein by reference. |
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(5) |
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Filed as an exhibit to the Predecessor Registrants Current Report on Form 8-K, filed March
23, 2005 and incorporated herein by reference. |
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(6) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 18, 2006 and incorporated herein by reference. |
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;
(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 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 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
registration statement;
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(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 shall not apply if 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 of 1934 (15 U.S.C. 78m or 78o(d)) 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser: each prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. Provided, however, that
no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned
Registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided by or on behalf of
the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(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.
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(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 Aliso Viejo, California, on April 15, 2009.
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Avanir Pharmaceuticals, Inc.
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By: |
/s/ Keith A. Katkin
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Keith A. Katkin |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
Each of the undersigned hereby constitutes and appoints each of Keith Katkin and Christine G.
Ocampo, his or her attorney-in-fact, with power of substitution, in his or her name and in the
capacity indicated below, to sign any and all further amendments (including post-effective
amendments) to this registration statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may 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 date indicated.
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Signature |
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Title |
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Date |
/s/ Keith A. Katkin
Keith A. Katkin
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President, Chief Executive Officer and
Director (Principal
Executive Officer)
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April 15, 2009 |
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/s/ Christine G. Ocampo
Christine G. Ocampo
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Vice President, Finance (Principal
Financial and Accounting Officer)
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April 15, 2009 |
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/s/ Stephen G. Austin
Stephen G. Austin
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Director
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April 15, 2009 |
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/s/ Charles A. Mathews
Charles A. Mathews
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Director
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April 15, 2009 |
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/s/ David J. Mazzo, Ph.D.
David J. Mazzo, Ph.D.
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Director
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April 15, 2009 |
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/s/ Dennis G. Podlesak
Dennis G. Podlesak
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Director
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April 15, 2009 |
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/s/ Nicholas J. Simon
Nicholas J. Simon
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Director
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April 15, 2009 |
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/s/ Craig A. Wheeler
Craig A. Wheeler
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Director
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April 15, 2009 |
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/s/ Scott M. Whitcup, M.D.
Scott M. Whitcup, M.D.
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Director
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April 15, 2009 |
6
EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
4.1
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Form of Common Stock Certificate (1) |
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5.1
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Opinion of Goodwin Procter LLP |
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23.1
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Consent of KMJ Corbin & Company LLP |
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23.2
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Consent of Goodwin Procter LLP (filed as a part of Exhibit 5.1) |
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24.1
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Power of attorney (set forth on signature page) |
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99.1
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Amended and Restated 1994 Stock Option Plan (2) |
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99.2
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Amended and Restated 1998 Stock Option Plan (2) |
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99.3
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Amended and Restated 2000 Stock Option Plan (3) |
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99.4
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Amended and Restated 2003 Equity Incentive Plan (3) |
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99.5
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Form of Non-Qualified Stock Option Award Notice for use with 2003 Equity Incentive Plan (3) |
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99.6
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Form of Restricted Stock Unit Grant Notice for use with 2003 Equity Incentive Plan (3) |
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99.7
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Form of Restricted Stock Grant Notice for use with 2003 Equity Incentive Plan (3) |
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99.8
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Amended and Restated 2005 Equity Incentive Plan (4) |
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99.9
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Form of Stock Option Agreement for use with 2005 Equity Incentive Plan (5) |
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99.10
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Form of Restricted Stock Unit Agreement for use with 2005 Equity Incentive Plan (6) |
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99.11
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Form of Restricted Stock Agreement for use with 2005 Equity Incentive Plan (6) |
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(1) |
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Filed as an exhibit to the registrants Registration Statement on Form 8-A/A, filed March 25,
2009 and incorporated herein by reference. |
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(2) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 21, 2001 and incorporated herein by reference. |
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(3) |
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Filed as an exhibit to the Predecessor Registrants Quarterly Report on Form 10-Q, filed May
14, 2003 and incorporated herein by reference. |
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(4) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 14, 2005 and incorporated herein by reference. |
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(5) |
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Filed as an exhibit to the Predecessor Registrants Current Report on Form 8-K, filed March
23, 2005 and incorporated herein by reference. |
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(6) |
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Filed as an exhibit to the Predecessor Registrants Annual Report on Form 10-K, filed
December 18, 2006 and incorporated herein by reference. |
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