Registration No. 333-_________
As filed with the Securities and Exchange Commission on November 7, 2001
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BENTLEY PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 59-1513162
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
65 Lafayette Road, Third Floor, North Hampton, NH 03862-2403
(Address of Principal Executive Offices) (Zip Code)
2001 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
James R. Murphy
Chairman and Chief Executive Officer
Bentley Pharmaceuticals, Inc.
65 Lafayette Road, Third Floor
North Hampton, NH 03862-2403
(Name and address of agent for service)
(603) 964-8006
(Telephone number, including area code, of agent for service)
with a copy to:
Jordan A. Horvath, Esq.
Vice President and General Counsel
Bentley Pharmaceuticals, Inc.
65 Lafayette Road, Third Floor
North Hampton, NH 03862-2403
(212) 874-4110
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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Common Stock, $.02 par value per share 713,900 (2)$7.73 (2)$ 5,518,447 (2)$ 1,379
Common Stock, $.02 par value per share 5,000 $5.25 $ 26,250 $ 7
Common Stock, $.02 par value per share 5,000 $5.80 $ 29,000 $ 7
Common Stock, $.02 par value per share 271,100 $6.00 $ 1,626,600 $ 407
Common Stock, $.02 par value per share 5,000 $6.33 $ 31,650 $ 8
TOTAL $ 1,808
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(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby all additional securities
resulting from anti-dilution adjustments under the 2001 Employee Stock Option Plan.
(2) The price per share is estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c); based on the average of the high and low prices for the Common Stock
as reported on the American Stock Exchange on November 2, 2001.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Bentley Pharmaceuticals,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a) of the Securities Exchange Act of 1934
(the "1934 Act") are incorporated herein by reference:
(a) The Company's Report on Form 10-K for the year ended December 31,
2000;
(b) The Company's Report on Form 8-K as filed with the Commission on
March 2, 2001, as amended by Form 8-K/A filed with the Commission on April 26,
2001 and as further amended by Form 8-K/A filed with the Commission on May 7,
2001;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2001;
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2001;
(e) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 2001; and
(f) the description of the Company's Common Stock contained in the
Company's Amendment No. 1 to its Registration Statement on Form 8-A/A filed with
the Commission on October 29, 1999.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and
prior to the filing of a post-effective amendment which indicates that all
securities offered 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 the filing of
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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Jordan A. Horvath, General Counsel of the Company, is rendering an
opinion on the validity of the securities registered hereunder and is eligible
to be granted options to purchase shares of Common Stock under the 2001 Employee
Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation
(the "Certificate") provides that the liability of a director of the Registrant
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law (the "DGCL"). Under the DGCL, the directors have a
fiduciary duty to the Registrant which is not eliminated by this provision of
the Certificate and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under the DGCL
for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
DGCL. This provision also does not affect the directors' responsibilities under
any other laws, such as the Federal securities laws or state or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its
directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers, provided that
this provisions shall not eliminate or limit the liability of a director: (i)
for any breach of the director's 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) arising under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The DGCL provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Certificate eliminates the personal liability of directors to the fullest extent
permitted by Section 102(b)(7) of the DGCL and 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 attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding. At present, there is no pending
litigation or proceeding involving any director, officer, employee or agent as
to which indemnification will be required or permitted under the
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Certificate. The Registrant is not aware of any threatened litigation or
proceeding that may result in a claim for such indemnification.
In addition, the Company has an insurance policy with Lexington
Insurance Company in the amount of $5,000,000 with respect to potential
liabilities of its directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to our directors, officers and
controlling persons pursuant to the provisions described above, or otherwise, we
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than our payment of expenses
incurred or paid by our director, officer or controlling person 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 for resale, we will, unless in the opinion of our 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Number Description of Exhibit
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4.1 Registrant's 2001 Employee Stock Option Plan. (Reference is
made to Appendix B to the Registrant's definitive Proxy
Statement for Annual Meeting of Stockholders filed with the
Securities and Exchange Commission on April 9, 2001, which
exhibit is incorporated herein by reference.)
*5.1 Opinion of Jordan A. Horvath, counsel to the Company
*23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Jordan A. Horvath (included in exhibit 5.1 hereto)
*24.1 Power of Attorney (included in signature page)
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*Filed herewith
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ITEM 9. UNDERTAKINGS.
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 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 the in 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.
(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 or Form S-8, and 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
Securities Exchange Act of 1934 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.
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 provisions described under Item 6
above, 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
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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 North Hampton, New Hampshire, on the 7th day of November, 2001.
BENTLEY PHARMACEUTICALS, INC.
By: /S/ JAMES R. MURPHY
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James R. Murphy
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of James R. Murphy, Michael D. Price
and Jordan A. Horvath and each of them with power of substitution, as his
attorney-in-fact, in all capacities, to sign any amendments to this registration
statement (including post-effective amendments) 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-facts or their 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 below by the following persons in the
capacities indicated on the 7th day of November, 2001.
Signature Title
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/S/ JAMES R. MURPHY Chairman, President, Chief Executive Officer
-------------------------- and Director (principal executive officer)
James R. Murphy
/S/ MICHAEL MCGOVERN Vice Chairman and Director
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Michael McGovern
/S/ ROBERT M. STOTE Senior Vice President, Chief Science Officer
-------------------------- and Director
Robert M. Stote
/S/ MICHAEL D. PRICE Vice President, Chief Financial Officer,
-------------------------- Treasurer, Secretary and Director (principal
Michael D. Price financial and accounting officer)
/S/ ROBERT GYURIK Vice President of Pharmaceutical Development
-------------------------- and Director
Robert Gyurik
/S/ CHARLES L. BOLLING Director
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Charles L. Bolling
/S/ MIGUEL FERNANDEZ Director
--------------------------
Miguel Fernandez
/S/ WILLIAM PACKER Director
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William Packer
EXHIBIT INDEX
Number Description of Exhibit
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4.1 Registrant's 2001 Employee Stock Option Plan. (Reference is
made to Appendix B to the Registrant's definitive Proxy
Statement for Annual Meeting of Stockholders filed with the
Securities and Exchange Commission on April 9, 2001, which
exhibit is incorporated herein by reference.)
*5.1 Opinion of Jordan A. Horvath, counsel to the Company
*23.1 Consent of Deloitte & Touche LLP
*23.2 Consent of Jordan A. Horvath (included in exhibit 5.1 hereto)
*24.1 Power of Attorney (included in signature page)
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*Filed herewith