AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 2, 2004
REGISTRATION NO. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
BONE CARE INTERNATIONAL, INC.
(Exact name of Registrant as Specified in Its Charter)
WISCONSIN 39-1527471
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1600 ASPEN COMMONS 53562
MIDDLETON, WISCONSIN (Zip Code)
(Address of Principal Executive Offices)
BONE CARE INTERNATIONAL, INC. 1996 STOCK OPTION PLAN
BONE CARE INTERNATIONAL, INC. 2002 STOCK INCENTIVE PLAN
BONE CARE INTERNATIONAL, INC. 2003 STOCK INCENTIVE PLAN
(Full Title of the Plans)
BRIAN J. HAYDEN
Bone Care International, Inc.
1600 Aspen Commons
Middleton, Wisconsin 53562
(Name and Address of Agent for Service)
Copy to:
STEVEN SUTHERLAND
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
CALCULATION OF REGISTRATION FEE
Title of Each Class of Amount to be Proposed Proposed Amount of
Securities to be Registered Maximum Maximum Registration
Registered Offering Price Aggregate Fee
Per Unit Offering Price
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Common Stock, 1,750,000 shares (1)(2) $ 12.76 (3) $ 22,330,000 (3) $ 1,806.50
without par value
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Preferred Stock 1,750,000 rights (4) (4) (4)
Purchase Rights
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(1) This registration statement registers 300,000 shares issuable under the Bone
Care International, Inc. 2003 Stock Incentive Plan, 750,000 shares issuable
under the Bone Care International, Inc. 2002 Stock Incentive Plan and 700,000
shares issuable under the Bone Care International, Inc. 1996 Stock Option Plan.
(2) Also registered hereby are such additional and intermediate number of shares
of Common Stock and Preferred Stock Purchase Rights as may become issuable
because of the provisions of the Plans relating to adjustments for changes
resulting from stock dividends, stock splits and similar changes.
(3) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the average
of the high and low prices of the Common Stock on the Nasdaq National Market on
December 26, 2003.
(4) The Preferred Stock Purchase Rights initially are attached to and trade with
the shares of Common Stock being registered hereby. Value attributable to such
Rights, if any, is reflected in the market price of the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed (File Number _____000-27854)
with the Securities and Exchange Commission (the "Commission") by Bone Care
International, Inc. (the "Company") are incorporated herein by reference:
(a) The Annual Report on Form 10-K of the Company for the fiscal year
ended June 30, 2003.
(b) The Quarterly Report on Form 10-Q of the Company for the quarter
ended September 30, 2003 and
(c) The description of the Common Stock, without par value, of the
Company (the "Common Stock") and the description of the Preferred Stock Purchase
Rights of the Company (the "Rights") associated with the Common Stock, contained
in Amendment No. 3 to the Registration Statement on Form 10 filed by the Company
with the Commission, under the caption "Description of Bone Care Capital Stock",
including any amendments or reports filed for the purpose of updating such
descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (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, are
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the respective dates of filing of such documents (such
documents, and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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
Under the Company's By-Laws, directors and officers of the
Company are entitled to mandatory indemnification from the Company against
certain liabilities and expenses (a) to the extent such officers or directors
are successful in the defense of a proceeding and (b) in proceedings in which
the director or officer is not successful in the defense thereof, unless it is
determined the director or officer breached or failed to perform his duties to
the Company and such breach or failure constituted: (i) a willful failure to
deal fairly with the Company or its shareholders in connection with a matter in
which the director or officer had a material conflict of interest, (ii) a
violation of criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was lawful or had no reasonable cause to believe
his or her conduct was unlawful, (iii) a transaction from which the director or
officer derived an improper personal profit, or (iv) willful misconduct. The
Company's By-Laws provide that the Company may purchase and maintain insurance
on behalf of an individual who is a director or officer of the Company against
liability asserted against or incurred by such individual in his or her capacity
as a director or officer regardless of whether the Company is required or
authorized to indemnify or allow expenses to the individual against the same
liability under the By-Laws.
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The Wisconsin Business Corporation Law (the "WBCL") contains
provisions for mandatory indemnification of directors and officers against
certain liabilities and expenses that are similar to those contained in the
Company's By-Laws. Under Section 180.0828 of the WBCL, directors of the Company
are not subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures to
perform any duty resulting solely from their status as such directors, except in
circumstances paralleling those in clauses (i) through (iv) in the preceding
paragraph. These provisions pertain only to breaches of duty by directors as
directors and not in any other corporate capacity, such as officers. As a result
of such provisions, shareholders may be unable to recover monetary damages
against directors for actions taken by them which constitute negligence or gross
negligence or which are in violation of their fiduciary duties, although it may
be possible to obtain injunctive or other equitable relief with respect to such
actions. If equitable remedies are found not to be available to shareholders in
any particular case, shareholders may not have any effective remedy against the
challenged conduct. Reference is made to the Company's Charter and By-Laws filed
as Exhibits 4.1(a), 4.1(b) and 4.2 hereto, respectively.
The Company has purchased directors and officers liability
insurance, which would provide coverage against certain liabilities including
liabilities under the Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
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 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; and 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) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission 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.
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(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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(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 Middleton, State of Wisconsin, on this 2nd day of
January, 2004.
BONE CARE INTERNATIONAL, INC.
By: /s/ Paul L. Berns
------------------------------------
Paul L. Berns
President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Paul L. Berns and Brian J.
Hayden and each of them, 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 all 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 in and about the premises, 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 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 indicated on this 2nd day of January, 2004.
Name Capacity
---- --------
/s/ Paul L. Berns
------------------------------------------------------------
Paul L. Berns Director, President and Chief Executive Officer
(principal executive officer)
/s/ Brian J. Hayden
------------------------------------------------------------
Brian J. Hayden Vice President-Finance (principal financial
officer and principal accounting officer)
/s/ Martin Barkin M.D.
------------------------------------------------------------
Martin Barkin, M.D. Director
/s/ Michael D. Casey
------------------------------------------------------------
Michael D. Casey Director
/s/ Charles R. Klimkowski
------------------------------------------------------------
Charles R. Klimkowski Director
/s/ Richard B. Mazess, Ph.D.
------------------------------------------------------------
Richard B. Mazess, Ph.D. Director
/s/ Gary E. Nei
------------------------------------------------------------
Gary E. Nei Director
/s/ Edward Staiano, Ph.D.
------------------------------------------------------------
Edward Staiano, Ph.D. Director
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
Number Description of Exhibit
------ ----------------------
4.1(a) Restated Articles of Incorporation of Bone Care (incorporated
by reference to Exhibit 3.1 to Amendment No. 3 to Bone Care's
Registration Statement on Form 10 (Registration Number
0-27854) (the "Form 10") filed under the Securities Exchange
Act of 1934, as amended)
4.1(b) Articles of Amendment to Articles of Incorporation of Bone
Care (incorporated by reference to Exhibit 3.1(b) of the Form
S-1 Registration Statement (Registration Number 333-43923))
4.2 By-Laws of Bone Care (incorporated by reference to Exhibit 3.2
to Bone Care's Quarterly Report on Form 10-Q for the period
ended September 30, 1999)
4.3 Shareholder Rights Agreement between Bone Care and Norwest
Bank, Minnesota, N.A. (incorporated by reference to Exhibit
4.1 to Amendment No. 3 to Form 10)
4.4 First Amendment to Shareholder Rights Agreement between Bone
Care and Norwest Bank Minnesota, N.A. (incorporated by
reference to Exhibit 4.2, Amendment No. 4 to Form 10)
4.5 Bone Care International, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 4.5 of the Form S-8
Registration Statement (Registration Number 333-55174).
4.6 Bone Care International, Inc. 2002 Stock Incentive Plan, as
amended*
4.7 Bone Care International, Inc. 2003 Stock Incentive Plan*
5.1 Opinion of Michael Best & Friedrich LLP*
23.1 Consent of Deloitte & Touche, LLP*
23.2 The consent of Michael Best & Friedrich LLP is contained in
its opinion filed as Exhibit 5.1 to this Registration
Statement*
24.1 Powers of Attorney for certain officers and directors
(contained on the signature page of this Registration
Statement)*
* Filed herewith.
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